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10 - Secondary Interim City Engineer Services Agreemetn with KSA EngineersItem No. 10 Vff"I "I � %, I In''Ay , I,, TO: Mayor & City Council FROM: Grayson Path, City Manager SUBJECT: Interim City Engineering Services Secondary Service when Conflict of Interest exists with Primary Service DATE: December 14, 2020 At the November 9, 2020 City Council meeting, the City Council approved an agreement with Hayter Engineering to serve as Interim City Engineer to address engineering -related issues, as needed. Such issues include Preliminary Plat review, Final Plat review, subdivision regulation consultation, utility/street in -the -field issues, etc., all as needed given City Staff are taking on as much as possible and to minimize expense. This relationship will exist until a new City Engineer is hired. When working with a local engineering firm, there is inevitably a time when a conflict of interest will occur. The primary example will be when a developer has approached Hayter Engineering to perform design or surveying duties. Hayter Engineering then cannot assist the City to review these documents, requiring the City to seek out a secondary engineering service for those situations. One such conflict of interest has already arisen which pre -dates the City Manager approaching Hayter Engineering about this Interim service. A secondary firm will be needed to review the material created by Hayter Engineering for their client. Although working with a local firm is most advantageous due to logistics, local knowledge and availability, and although conflicts of interest are rare, conflicts of interest are still most likely to occur when working with a local firm. STATUS OF ISSUE: The City Manager has approached KSA Engineering of Longview, TX to serve in the role of secondary Interim City Engineer when needed. The City has worked with KSA Engineering before, the most recent project being SE 17th Street between Lamar Avenue and Clarksville. They are a larger firm with multiple assets and resources similar to Hayter Engineering, so they will be able to address the same issues stated above. An agreement has been developed and is ready for the City Council's approval tonight. BUDGET: The Agreement is hourly with rates listed under Appendix 1. OPTIONS: 1. Approve the Short Form Agreement with KSA Engineers, Inc. for Secondary Interim City Engineering Services and authorize the City Manager to sign. 2. Request edits or additional information to the proposed agreement. 3. Request that other firm(s) be approached. 4. Reject working with a secondary third -party engineering firm for city engineer services and advise the City Manager. RECOMMENDATION: 1. Approve the Short Form Agreement with KSA Engineers, Inc. for Secondary Interim City Engineering Services and authorize the City Manager to sign. This document has important legal consequences; consultation with an attorney is encouraged with respect to its use or modification. This document should be adapted to the particular circumstances of the contemplated Project and the controlling Laws and Regulations. SHORT FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES Prepared by J C", ]�", ... ...... .. a N G III N E I3S JOINI" COIII''i; "`I.. III�w' �'��°�I� �� ICS �����I..... and Issued and Published Jointly by ACEC AGC of America »' American Society National Society of Professional Engineers ASCEof Civil Engineers Frolessionst Engineers in Private Practice AMERICAN COUNCIL OF ENGINEERING COMPANIES ASSOCIATED GENERAL CONTRACTORS OF AMERICA AMERICAN SOCIETY OF CIVIL ENGINEERS PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE A Practice Division of the NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS EJCDC E-520 Short Form of Agreement Between Owner and Engineer for Professional Services Copyright ©2009 National Society of Professional Engineers for EJCDC. All rights reserved. This Agreement has been prepared for use with the Standard General Conditions of the Construction Contract (EJCDC C-700, 2007 Edition) of the Engineers Joint Contract Documents Committee. Their provisions are interrelated, and a change in one may necessitate a change in the other. SPECIAL NOTE ON USE OF THIS FORM This abbreviated Agreement form is intended for use only for professional services of limited scope and complexity. It does not address the full range of issues of importance on most projects. In most cases, Owner and Engineer will be better served by the Standard Form of Agreement Between Owner and Engineer for Professional Services (EJCDC E-500, 2008 Edition), or one of the several special purpose EJCDC professional services agreement forms. Copyright © 2009 National Society of Professional Engineers 1420 King Street, Alexandria, VA 22314-2794 (703)684-2882 American Council of Engineering Companies 1015 15th Street N.W., Washington, DC 20005 (202) 347-7474 voyA/ gic; org American Society of Civil Engineers 1801 Alexander Bell Drive, Reston, VA 20191-4400 (800) 548-2723 Associated General Contractors of America 2300 Wilson Boulevard, Suite 400, Arlington, VA 22201-3308 (703) 548-3118 E n!�f SIIRL2l:.,¢,;;ly, The copyright for this EJCDC document is owned jointly by the four EJCDC sponsoring organizations and held in trust for their benefit by NSPE. EJCDC E-520 Short Form of Agreement Between Owner and Engineer for Professional Services Copyright ©2009 National Society of Professional Engineers for EJCDC. All rights reserved. SHORT FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES THIS IS AN AGREEMENT effective as of of Paris ("Effective Date") between ("Owner") and mm ........_ ...... _.__...._ KSA Engineers, Inc. _ ("Engineer"). Owner's Project, of which Engineer's services under this Agreement are a part, is generally identified as follows _ , ......... PRS.020 Review of Developer Plans ("Project"). Engineer's Services under this Agreement are generally identified as follows: Provide miscellaneous engineering services as requested by the City of Paris on an as -needed basis. Miscellaneous engineering services may include but are not limited to: o General engineering consultation o Developer plan reviews o Other engineering tasks as may be requested by the City Manager No work will be performed by the Engineer under this agreement without prior authorization from the Owner. Owner and Engineer further agree as follows: 1.01 Basic Agreement and Period of Service A. Engineer shall provide, or cause to be provided, the services set forth in this Agreement. If authorized by Owner, or if required because of changes in the Project, Engineer shall furnish services in addition to those set forth above. Owner shall pay Engineer for its services as set forth in Paragraphs 7.01 and 7.02. EJCDC E-520 Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright 02009 National Society of Professional Engineers for EJCDC. All rights reserved. Page 1 B. Engineer shall complete its services within a reasonable time, or within the following specific time period: N/A C. If the Project includes construction -related professional services, then Engineer's time for completion of services is conditioned on the time for Owner and its contractors to complete construction not exceeding N/A months. If the actual time to complete construction exceeds the number of months indicated, then Engineer's period of service and its total compensation shall be appropriately adjusted. 2.01 Payment Procedures A. Invoices: Engineer shall prepare invoices in accordance with its standard invoicing practices and submit the invoices to Owner on a monthly basis. Invoices are due and payable within 30 days of receipt. If Owner fails to make any payment due Engineer for services and expenses within 30 days after receipt of Engineer's invoice, then the amounts due Engineer will be increased at the rate of 1.0% per month (or the maximum rate of interest permitted by law, if less) from said thirtieth day. In addition, Engineer ma�erivin seven daws written notice to Owner. susend services under this Age~eement until Engineer has been paid .in full all amounts due for services,ex )enses, and other Suspension. Payments will be credited first to interest and then to principal. 3.01 Termination A. The obligation to continue performance under this Agreement may be terminated: 1. For cause, a. By either party upon 30 days written notice in the event of substantial failure by the other party to perform in accordance with the Agreement's terms through no fault of the terminating party. Failure to pay Engineer for its services is a substantial failure to perform and a basis for termination. b. By Engineer: 1) upon seven days written notice if Owner demands that Engineer furnish or perform services contrary to Engineer's responsibilities as a licensed professional; or 2) upon seven days written notice if the Engineer's services for the Project are delayed for more than 90 days for reasons beyond Engineer's control. Engineer shall have no liability to Owner on account of a termination by Engineer under Paragraph 3.0I I.A. Lb. c. Notwithstanding the foregoing, this Agreement will not terminate as a result of a substantial failure under Paragraph 3.01.A.1.a if the party receiving such notice begins, within seven days of receipt of such notice, to correct its substantial failure to perform and proceeds diligently to cure such failure within no more than 30 days of receipt of notice; provided, however, that if and to the extent such substantial failure cannot be EJCDC E-520 Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright ©2009 National Society of Professional Engineers for EJCDC. All rights reserved. Paae 2 reasonably cured within such 30 day period, and if such party has diligently attempted to cure the same and thereafter continues diligently to cure the same, then the cure period provided for herein shall extend up to, but in no case more than, 60 days after the date of receipt of the notice. 2. For convenience, by Owner effective upon Engineer's receipt of written notice from Owner. B. The terminating party under Paragraph 3.01.A may set the effective date of termination at a time up to 30 days later than otherwise provided to allow Engineer to complete tasks whose value would otherwise be lost, to prepare notes as to the status of completed and uncompleted tasks, and to assemble Project materials in orderly files. C. In the event of any termination under Paragraph 3.01, Engineer will be entitled to invoice Owner and to receive full payment for all services performed or furnished in accordance with this Agreement and all reimbursable expenses incurred through the effective date of termination. 4.01 Successors, Assigns, and Beneficiaries A. Owner and Engineer are hereby bound and the successors, executors, administrators, and legal representatives of Owner and Engineer (and to the extent permitted by Paragraph 4.01.13 the assigns of Owner and Engineer) are hereby bound to the other party to this Agreement and to the successors, executors, administrators, and legal representatives (and said assigns) of such other party, in respect of all covenants, agreements, and obligations of this Agreement. B. Neither Owner nor Engineer may assign, sublet, or transfer any rights under or interest (including, but without limitation, moneys that are due or may become due) in this Agreement without the written consent of the other, except to the extent that any assignment, subletting, or transfer is mandated or restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. C. Unless expressly provided otherwise, nothing in this Agreement shall be construed to create, impose, or give rise to any duty owed by Owner or Engineer to any contractor, subcontractor, supplier, other individual or entity, or to any surety for or employee of any of them. All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of Owner and Engineer and not for the benefit of any other party. 5.01 General Considerations A. 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. Engineer makes no warranties, express or implied, under this Agreement or otherwise, in connection with Engineer's services. Subject to the foregoing standard of care, Engineer and its consultants may use or rely upon design elements and information ordinarily or customarily furnished by others, including, but not limited to, specialty contractors, manufacturers, suppliers, and the publishers of technical standards. EJCDC E-520 Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright ©2009 National Society of Professional Engineers for EJCDC. All rights reserved. Page 3 B. Engineer shall not at any time supervise, direct, control, or have authority over any contractor's 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 Project site, nor for any failure of a contractor to comply with laws and regulations applicable to such contractor's furnishing and performing of its work. C. This Agreement is to be governed by the law of the state Pfojeet is 1,.eatea. of Texas. D. An controvers or claim arisin: out of or relating to this_Aheement or breach thereof shall be settled in the state courts in Lamar Count , Texas. E. Engineer neither guarantees the performance of any contractor nor assumes responsibility for any contractor's failure to furnish and perform its work in accordance with the contract between Owner and such contractor. Engineer is not responsible for variations between actual construction bids or costs and Engineer's opinions or estimates regarding construction costs. F. Engineer shall not be responsible for the acts or omissions of any contractor, subcontractor, or supplier, or of any of their agents or employees or of any other persons (except Engineer's own employees) at the Project site or otherwise furnishing or performing any construction work; or for any decision made regarding the construction contract requirements, or any application, interpretation, or clarification of the construction contract other than those made by Engineer. G. The general conditions for any construction contract documents prepared hereunder are to be the "Standard General Conditions of the Construction Contract" as prepared by the Engineers Joint Contract Documents Committee (EJCDC C-700, 2007 Edition) unless the parties agree otherwise. H. All documents prepared or furnished by Engineer are instruments of service, and Engineer retains an ownership and property interest (including the copyright and the right of reuse) in such documents, whether or not the Project is completed. Owner shall have a limited license to use the documents on the Project, extensions of the Project, and for related uses of the Owner, subject to receipt by Engineer of full payment for all services relating to preparation of the documents and subject to the following limitations: (1) Owner acknowledges that such documents are not intended or represented to be suitable for use on the Project unless completed by Engineer, or for use or reuse by Owner or others on extensions of the Project, on any other project, or for any other use or purpose, without written verification or adaptation by Engineer; (2) any such use or reuse, or any modification of the documents, without written verification, completion, or adaptation by Engineer, as appropriate for the specific purpose intended, will be at Owner's sole risk and without liability or legal exposure to Engineer or to its officers, directors, members, partners, agents, employees, and consultants; (3) Owner shall indemnify and hold harmless Engineer and its officers, directors, members, partners, agents, employees, and consultants from all claims, damages, losses, and expenses, including attorneys' fees, arising out of or resulting from any use, reuse, or modification of the documents without written verification, completion, or adaptation by Engineer; and (4) such limited license to Owner shall not create any rights in third parties. To the fullest extent permitted by law, Owner and Engineer (1) waive against each other, and the other's employees, officers, directors, agents, insurers, partners, and consultants, any and all claims EJCDC E-520 Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright 02009 National Society of Professional Engineers for EJCDC. All rights reserved. Pace 4 for or entitlement to special, incidental, indirect, or consequential damages arising out of, resulting from, or in any way related to the Project, and (2) agree that Engineer's total liability to Owner under this Agreement shall be limited to $50,000 or the total amount of compensation received by Engineer, whichever is greater. The parties acknowledge that Engineer's scope of services does not include any services related to a Hazardous Environmental Condition (the presence of asbestos, PCBs, petroleum, hazardous substances or waste as defined by the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§9601 et seq., or radioactive materials). If Engineer or any other party encounters a Hazardous Environmental Condition, Engineer may, at its option and without liability for consequential or any other damages, suspend performance of services on the portion of the Project affected thereby until Owner: (1) retains appropriate specialist consultants or contractors to identify and, as appropriate, abate, remediate, or remove the Hazardous Environmental Condition; and (2) warrants that the Site is in full compliance with applicable Laws and Regulations. K. Owner and Engineer agree to negotiate each dispute between them in good faith during the 30 days after notice of dispute. If negotiations are unsuccessful in resolving the dispute, then the dispute shall be mediated. If mediation is unsuccessful, then the parties may exercise their rights at law. L. Scanned Renroductions. The parties a,l-ee and sti ulate that the original of this Agreement, including the si�3nature a be and an r attachments. mai be scanned and stored in a_ com titer database or similar device, and that an lrintout or other output readable b( siuht the re roduction of which is shown to accuratel re :produce the„ original ma v be used for an , purposq jugst as if it were the original, includin, goof of the content of the ori sinal writinv. 6.01 Total Agreement A. This Agreement (including any expressly incorporated attachments), constitutes the entire agreement between Owner and Engineer and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented, modified, or canceled by a duly executed written instrument. 7.01 Basis of Payment—Hourly Rates Plus Reimbursable Expenses A. Using the procedures set forth in Paragraph 2.01, Owner shall pay Engineer as follows: 1. An amount equal to the cumulative hours charged to the Project by each class of Engineer's employees times standard hourly rates for each applicable billing class for all services performed on the Project, plus reimbursable expenses and Engineer's consultants' charges, if any. 2. Engineer's Standard Hourly Rates are attached as Appendix 1. 3. The total compensation for services and reimbursable expenses is estimated to be $5,000. 7.02 Additional Services: For additional services of Engineer's employees engaged directly on the Project, Owner shall pay Engineer ea amount equal to the eaufflidative hours ehafged te the Pr-ejee by eaeh elass of Eagineer-'s employees times standafd heth4y Fates fer- eaeh a"heable billing elass; EJCDC E-520 Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright 02009 National Society of Professional Engineers for EJCDC. All rights reserved. Page 5 --A9 91 ehar-ges, if—any. Efigineer-s standaM h0tir-ly ffiteS . a4me1—A as follows: 1.An amount e'� ual to the curnulative hours charued to .. . ........ .. . . . . . . .th......... _;Prqjpct_bmq a y class of Engineer's emploN,ees times standard hourly rates for . . . .......... . .... . ,e ac h. a-fiqqbjp_b:t1jing class for all services performed ,qqthe _F!pqject flus reimbursable expenses and jpqer's consultants' charges , Jf, . consultants', 2. EnJneer's Standard HourlN Rates are attached as A]?I?endix 1. attached - - - ------- 3. The totalation for additional services and reimbursable -�Omj)ens— ses - . . .. and expenses is estimated to be N/A. Attachment: Appendix 1, Engineer's Standard Hourly Rates IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on page 1, OWNER: City, of Paris By: Name: Gray son Path Title: Cii�� Manager . . ................ Date Signed: Address for giving notices: PO Box 9037 Texas 75460 ENGINEER: KSA Engineers, Inc. By: 'ZI-1 . . . ....... . ............. Namv?-"Jon -Ae_H,._1� Title: Director of Municipal Services ......... . Date Signed: Engineer License or Finn's Certificate Number: F-1356 -- -------- -- EJCDC E-520 Short Form of Agreement Between Owner and Engineer for Professional services, Copyright D2009 National Society of Professional Engineers for EJCDC. All rights reserved. Page 6 Appendix 1 Reimbursable Expenses Schedule Rates for hourly work and reimbursable expenses effective on the date of this Agreement are: Principal $260.00/hour Senior Environmental Planner $215.00/hour Environmental Planner $170.00/hour Senior Aviation Planner $220.00/hour Aviation Planner $168.00/hour Senior Urban Design Planner $215.00/hour Urban Design Planner $185.00/hour Development Services Manager $195.00/hour Electrical Engineer $230.00/hour Mechanical Engineer $175.00/hour Senior Project Manager $205.00/hour Project Manager $175.00/hour Senior Project Engineer $165.00/hour Project Engineer $135.00/hour Senior Design Engineer $120.00/hour Design Engineer $110.00/hour Senior Project Architect $190.00/hour Project Architect $140.00/hour Design Architect $100.00/hour GIS Specialist $140.00/hour Senior Engineering Technician $180.00/hour Engineering Technician $100.00/hour Senior Design Technician $120.00/hour Design Technician $ 85.00/hour Safety Manager $130.00/hour Safety Specialist $ 95.00/hour TCEQ Instructor $ 95.00/hour Regulation Compliance Specialist $ 90.00/hour Project Assistant $ 85.00/hour Senior CAD Technician $ 85.00/hour CAD Technician $ 75.00/hour Senior Project Representative $100.00/hour Senior Project Representative - After Hours $120.00/hour Project Representative $ 90.00/hour Project Representative - After Hours $110.00/hour Graphic Designer $ 70.00/hour Administrative Assistant $ 75.00/hour Secretary $ 55.00/hour Three -Man Survey Crew $185.00/hour Two -Man Survey Crew $155.00/hour Senior Registered Surveyor $160.00/hour Registered Surveyor $130.00/hour Senior Survey Technician $110.00/hour Survey Technician $ 95.00/hour Mileage $ 0.58/mile ATV (4 -Wheeler) $100.00/day GPS $100.00/day Reimbursable Expenses (Travel, Lodging, Copies, Printing) Actual Cost Outside Consultants Cost + 15% NOTE: The Standard Hourly Rates and Reimbursable Expenses Schedule shall be adjusted annually as of January to reflect equitable changes in the compensation payable to Engineer. Appendix 1, Standard Hourly Rates Schedule EJCDC E-520 Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright ©2009 National Society of Professional Engineers for EJCDC. All rights reserved Page 1