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5.3. SR 07-09-2007 REQUEST FOR ACTION To Ci Council Agenda Section Meeting Date W orksession ul 9, 2007 Item Description Agreement for Public Works Director Services Between the City of Elk River and BDM Consulting Engineers Reviewed by Administrator Action Requested Consider Agreement for Public Works Director Services Between the City of Elk River and BDM Consulting Engineers. Background/Discussion At the June 11,2007, worksession, the Council directed staff to prepare a two year contract for Terry Maurer with BDM Consulting Engineers to provide services as the city's public works director. Attached is an Agreement for Public Works Director Services Between the City of Elk River and BDM Consulting Engineers (Agreement). The Agreement outlines the services to be provided which are the duties and responsibilities included in the public works director job description previously approved by the Council. Mr. Maurer will serve as a consultant, not a city employee. The term will be two years and the fee will be $105,000 per year. The Agreement includes a cancellation clause whereby the Agreement may be cancelled by either the City or BDM with or without cause upon 90 days written notice and cancelled immediately by the City if the City determines that BDM has failed to comply with any term of this Agreement. There is also a conflict of interest clause stating that BDM shall not work for or represent any developers on projects in the City of Elk River, and that no BDM employee providing services to the city shall work with developers who develop property in the city or with contractors who are under contract to complete city projects. Financial Impact The agreement requires payment of $105,000 per year for public works director services. This is approximately the same amount being paid under the current arrangement with BDM for Mr. Maurer's services as city engineer. Attachments · Agreement for Public Works Director Services Between the City of Elk River and BDM Consulting Engineers. Action Motion by _ Second by _ Vote Follow Up S:\Council\Lori\2007\Public works director agreement 0709 07.doc AGREEMENT FOR PUBLIC WORKS DIRECTOR SERVICES BETWEEN THE CITY OF ELK RIVER AND BDM CONSULTING ENGINEERS THIS AGREEMENT, effective the 10th day of July, 2007, by and between the CITY OF ELK RIVER, a Minnesota municipal corporation ("City") and BDM Consulting Engineers and Surveyors, a Minnesota LLP ("BDM"). NOW, THEREFORE, in consideration of the mutual undertakings herein, the parties hereto agree as follows: 1. SERVICES AND RELATIONSHIP. A. BDM shall furnish and perform municipal public works director services to the City. The services provided shall include all of the Essential Functions listed on the attached City of Elk River Public Works Director Position Description ("Position Description") and other duties as assigned by the City Council and City Administrator. B. The services provided pursuant to this Agreement shall be performed in a manner and at a level of competence which is consistent with the qualifications set forth in the Position Description and the City's standards and requirements that apply to a City Department Head position. C. BDM shall assign its employee Terry Maurer to work exclusively and on a full time basis on this assignment. D. BDM shall be engaged as an independent contractor to the City and Mr. Maurer shall be a BDM employee, not a City employee. E. Mr. Maurer will work under the direction of the City Administrator. 1 F. Mr. Maurer will supervise the positions listed in the Position Description. 2. TERM. A. The initial term of this Agreement shall be from July 3, 2007 to and including June 30, 2009, ("Term"), unless terminated earlier as provided in paragraph 6 herein. This Agreement may be renewed by the City upon written notice to BDM provided prior to expiration of the initial term. 3. FEES. A. BDM will provide all of Mr. Maurer's services to the City at $105,000 per year for the initial term of this Agreement. This includes all expenses such as travel, mileage, cell phone, training, membership dues and other related costs. 4. OFFICE SPACE AND SUPPORT SERVICES. The City shall supply office space for Mr. Maurer. Secretarial support for this position will be provided by the City. 5. INDEMNIFICATION AND INSURANCE. BDM agrees it will defend, indemnify and hold harmless the City, its officers and employees against any and all liability, loss, costs, damages or expenses which the City, its officers or employees may hereafter sustain, incur or be required to pay, arising out of BDM or Mr. Maurer's performance or failure to adequately perform their obligations pursuant to this Agreement. BDM further agrees that in order to protect itself as well as the City under the indemnity provision set forth herein, it will at all times during the Term of this Agreement maintain liability and errors and omissions insurance in the amount of $300,000.00 per claim with a $900,000.00 aggregate limit. 2 6. CANCELLATION. The Agreement may be canceled by either the City or 80M with or without cause upon ninety (90) days written notice. This Agreement may be canceled immediately by City, or upon such notice as City deems appropriate, if City determines that 80M has failed to comply with any term of this Agreement. 7. SUBCONTRACTING ASSIGMENT. Mr. Maurer's services are the essence of this Agreement and 80M shall not subcontract for the performance of any of the services contemplated by Section 1 of this Agreement without the prior written approval of the City and subject to such conditions, provisions, and approval as the City may deem necessary. 8. Additional Services. 80M shall, in addition to Mr. Maurer's services, provide additional services as approved by and for the fees approved by the City Administrator or City Council. 9. COMMUNICATION PLAN AND PERFORMANCE REVIEW. Mr. Maurer agrees that he will meet upon request with the City Administrator and City Council to discuss public works issues. Mr. Maurer agrees to meet at least annually with the Elk River City Administrator or such other persons designated by the City Council to review the performance of his work under this Agreement. 10. Conflicts of Interest. A. 80M shall not work for or represent any developers on projects in the City of Elk River. 3 B. No BDM employee providing services to the City shall work with developers who develop property in the City or with contractors who are under contract to complete City projects. 11. MISCELLANEOUS. A. Governing Law: This Agreement shall be governed by the laws of the State of Minnesota. B. Effective Date: This Agreement shall become effective as stated in Section 2. This Agreement shall not be modified or amended without the approval in writing of the City and BDM. CITY OF ELK RIVER Dated: ,2007 By: Mayor By: City Clerk 80M CONSULTING ENGINEERS Dated: ,2007 By: ~&~ Its President GP:2232378 v2 4