Smoky Hill River Master Plan
AGREEMENT BETWEEN THE CITY OF SALINA, KANSAS
and
HDR ENGINEERING, INC.
for
ENGINEERING SERVICES
This Agreement is entered into on the latest date of execution shown on the
signature page by and between the City of Salina, Kansas, (the "CITY") and HDR
Engineering, inc. a Nebraska corporation, (the "CONSULTANT").
Recitals
A. The CITY utilizes the Old Channel of the Smoky Hill. River for storm
drainage.
B. The CITY desires to contract fOr the engineering services necessary to
perform water rights services for the Old River Channel Master Plan (by others) in
compliance with all federal and state regulations.
C. The . CONSULTANT has the requisite qualifications and experience to
perform the services desired by the CITY and desires to perform those services
pursuant to the terms of this Agreement.
The parties therefore agree and covenant:
1. Scope of Services. The CONSULTANT agrees to perform the services
outlined in the attached and incorporated Exhibit A.
The . CONSULTANT shall provide its services in accordance with the
normal degree of care and skill of other reputable design professionals
providing similar services on similar projects of like size and nature in the
vicinity of this project.
2. Term. The CONSULTANT agrees to perform the services according to
the timeframe described in Exhibit B, subject to prior termination pursuant to the terms
of this Agreement;
3. Compensation. The CITY agrees to compensate the CONSULTANT on
the basis of the actual hourly rates and reimbursable expenses shown on the
CONSULTANT's fee schedule attached and incorporated as Exhibit C, in amounts not
to exceed the budgetary summaries, annual budgets and summary list of tasks, attached
and incorporated. The . CONSULTANT's hourly rates and reimbursable expense rates
are attached and incorporated as Exhibit D.
4. Non-appropriation. In the event that this Agreement anticipates work
spanning multiple' budget years for the City, it is subject to further appropriation by the
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CITY's governing body for future fiscal budget years. If the CITY's governing body does
not appropriate the funds necessary to compensate the CONSULTANT for services to
be provided pursuant to this Agreement in the future fiscal years, the CITY shall so
notify the CONSULTANT and this Agreement shall be null and void for purposes of the
fiscal budget year(s) affected by the decision of the governing body not to appropriate.
5. Invoices. CONSULTANT agrees to submit to the CITY detailed
invoices at least. monthly for work performed and reimbursable expenses actually
incurred. The invoices shall identify the personnel performing the work, the date of the
work, the work performed and the time required to the. one-tenth of an hour. Charges
for subcontracted work will be supported with similar documentation. Charges for
reimbursable expenses will specifically identify the type and amount of each expense in
a manner consistent with the classifications of reimbursable expenses set forth in
Exhibit C.
6. Payment. Invoices will be due and payable within 45 days of receipt by.
the CITY. If the CITY disputes any items in CONSULTANTs invoice for any reason, the
CITY may temporarily delete the disputed item and pay the remaining amount of the
invoice. The CITY will promptly notify CONSULTANT and request clarification and/or
correction. Following resolution of any dispute, CONSULTANT will include the disputed
item as resolved on a subsequent invoice. The CONSULTANT retains the right to
assess the CITY interest?t the rate of up to one percent(1%) per month on undisputed
invoices which are not paid within 45 days of receipt by the CITY.
7. Nonperformance. If either party fails to comply with any term of this
Agreement within 10 days after written notice to comply has been mailed by the non-
defaulting party to the defaulting party, such failure shall be deemed an immediate
breach of this Agreement. In such case, the non-defaulting party may pursue against
the defaulting party such remedies as provided by law or in equity, including without
limitation, the right to specifically enforce this Agreement. In addition, the non-defaulting
party may recover its costs and reasonable attorneys' fees incurred in any action related
to such breach. In the event of such termination upon the default of the CONSULTANT,
the CONSULTANT shall not be entitled to further compensation from the CITY for work
performed or costs sustained following the date of termination.
8. Termination. Either party may terminate this Agreement, with or without
cause, upon 30 days advance written notice to the other party. In the event of such
termination, the CONSULTANT shall be compensated for such services as have been
performed through the date of termination.
9. Relationship. It is expressly understood that CONSULTANT in
performing services under this Agreement, does so as an independent contractor. The
City shall neither have nor exercise any control or direction over the methods by which
CONSULTANT p~rforms its services hereunder. The sole interest and responsibility of
the City is to see that the services covered by this Agreement are performed and
rendered in a competent, efficient, and satisfactory manner. CONSULTANT shall be
exclusively responsible for all taxes, withholding payments, employment-based benefits,
deferred compensation plans, including but not limited to its workers compensation and
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social security obligations, and the filing of all necessary documents, forms, or returns
pertinent to the foregoing.
10. Iniurv to Persons or Damaae to Property. CONSULTANT acknowledges
responsibility for any injury to person(s) or damage to _property caused by its employees
or agents in the performance of its duties under this Agreement and shall immediately
notify the City's Risk Management Department at (785) 309-5705 in the -event of such
injury to person(s) or damage to property.
11. Indemnification. CONSULTANT agrees to indemnify and save harmless
the City, its officials, agents, servants, officers, directors and employees from and
against all claims, expenses, demands, judgments and causes of action for personal
injury or death or damage to property where, and to the extent that, such claims,
expenses, demands judgment or causes or action arise from CONSULTANT's negligent
acts. (
12. Insurance Reauirements. CONSULTANT shall maintain the following
insurance coverage without interruption from the date of the commencement of this
agreement until date of final payment and. termination of any coverage required to be
maintained after final payment
Professional Liabilitv - Errors and Omissions
The CONSULTANT shall provide Engineers Professional Liability Insurance with
limits not less than $500,000, covering the professional liability of the
. CONSULTANT and any and all consultants, agents or independent contractors
which are employed or retained by the CONSUL TANTo The insurer must be
acceptable. to the City of Salina. In the event coverage provided is a claims
made coverage, the insurance shall be maintained for a period of not less than
three (3) years after completion of the contract or in lieu thereof PLJrchase of tail
coverage (extended reporting period) under which the City of Salina shall be
afforded protection.
In lieu of the above coverage, the CONSULTANT may provide the described
coverage for his own firm in the above amount and submit proof all his
consultants, agents and independent contractors have' insurance deemed
adequate by the City of Salina.
Commercial General Liabilitv Insurance
CONSULTANT shall provide public liability insurance coverage in an amount no
less than $500,000 covering the liability of CONSULTANT and any and all
consultants, agents or independent contractors which are employed or retained
by CONSULTANT on an occurrence basis.
In lieu of the above coverage, CONSULTANT may provide coverage for its own
firm in the above amount or an additional amount and submit proof all its
consultants, agents and independent contractors have insurance deemed
adequate by the City of Salina.
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Automobile Liabilitv
CONSULTANT shall provide coverage protecting CONSULTANT against claims
for bodily injury and/or property damage arising out of the ownership or use of
any owned, hired and/or non-owned vehicle. Required minimum limits: $500,000
each accident, combined single limits, bodily injury and property damage.
Worker's Compensation
Before beginning any work, CONSULTANT shall furnish to the City satisfactory
proof that' he has taken out, for the period covered by the work under this
contract, full workers' compensation coverage as required by state law for all
persons who he may employ directly, or through subcontractors, in carrying out.
the work ,contemplated under' this contract, and shall hold the City free and
harmless for all personal injuries of all persons who the CONSULTANT may
employ directly or through subcontractors.
Certificate(s) of Insurance
Certificate(s) of Insurance acceptable to the City shall be filed with the City at the
time .this Agreement is executed. These certificates shall contain a provision that
coverage afforded under the policies will not be cancelled or substantially
changed until at least thirty (30) days prior written notice has been given to the
City and acknowledged.
Notice of Claim
CONSULTANT, upon receipt of notice of any claim in excess of $1,000 in
connection with this Agreement shall promptly notify the Risk Management
Department, (785) 309-5705, providing full details thereof, including an estimate
of the amount of loss or liability.
13. Equal Opportunity. In conformity with Chapter 13 of the Salina Code,
the CONSULTANT and its subcontractors, if any, shall:
a. Observe the provision of Chapter 13 of the Salina Code and shall not
discriminate against any person in the performance of work under this
Agreement;
b. Include in all solicitations, or advertisements for employees, the phrase
"equal opportunity employer," or a similar phrase to be approved by the
city's human relations director; and '
c. Not discriminate against any employee or applicant for employment in
the performance of this Agreement; and
d. Include similar provisions in any subcontract under this Agreement.
14. Affirmative Action. The CONSULTANT agrees to abide by the Salina
Code Sections 13-132 and 133 relating to affirmative action and affirmative action
plans, attached and incorporated herein as Exhibit E.
15. Compliance with Applicable Law. CONSULTANT shall comply with all
applicable federal, state, and local law in the performance of its duties under this
Agreement.
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16. Non-assianable. Due to the unique qualifications and circumstances of the
parties, neither the rights nor the responsibilities provided for under this Agreement shall
be assignable by either party, either in whole or in part.
17. Feminine-Masculine. Sinaular-Plural. Wherever used, singular shall
include the plural, plural the singular, and use of any ~ender shall include all genders.
18. Kansas Law Applies. This Agreement and its validity, construction and
performance shall be governed by the laws of Kansas. This Agreement shall be
interpreted according to its fair meaning, and not in favor of or against any party.
19. Severabilitv. The unenforceability, invalidity, or illegality of any provision of
this Contract shall not render the other provisions unenforceable, invalid, or illegal.
20. Time. Time is of the essence of this Agreement. No extension will be
granted unless in writing and signed by the parties. Should the end of a time period fall on
a legal holiday, that time period shall extend to 5:00 p.m. of the next full business day.
21. Persons Bound-Copies. This Agreement shall extend to and bind the
successors and assigns of the parties hereto, and may be executed in any number of
counterparts, each of which shall be deemed an original, or in multiple originals, and all
such counterparts or originals shall for all purposes constitute one agreement.
22. Notices. All notices and demands shall be given in writing either by
personal service or by registered or certified mail, postage prepaid, and return-receipt
requested. Notice shall be considered given when received on date appearing on the
return receipt, but if the receipt is not returned within five (5) days, then forty-eight (48)
hours after deposit in the mail. Notices shall be addressed as appears below for each
party, provided that if any party gives notice of a change of name or address, notices to
the giver of that notice shall thereafter be given as demanded in that notice.
CITY:
Martha Tasker, Director of Utilities
City of Salina
300 West Ash
Salina, KS 67402-0736
CONSULTANT:
Donald Lindeman, P.E., Project Manager
4435 Main Street, Suite 1000
Kansas City, MO 64111
23. Tvpewritten or Handwritten Provisions. Typewritten or handwritten
provisions inserted or attached shall supersede all conflicting printed provisions.
24. Meraer Clause. These terms are intended by the parties as a complete,
conclusive and final expression of all the conditions of their Agreement. No other
promises, statements, warranties, agreements or understandings, oral or written, made
before or at the signing thereof, shall be binding unless in writing and signed by all parties
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and attached hereto. Any amendment to this Contract, including an oral modification
supported by new consideration, must be reduced to writing and signed by both parties
before it will be effective.
25. Attachments: The following Exhibits and other documents are attached to
and made a part of this Agreement:
a. Exhibit A: Scope of Services.
b. Exhibit B: Schedule.
c. Exhibit C: Estimate of Costs.
d. Exhibit D: Hourly Rates and Expenses
e. Exhibit E: Salina Code Sections 13-132 and 13-133.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective proper officials.
Executed by the CONSULTANT this ~ dayof ~20 10
Executed by the CITY this ~ dayof ~ 20 10
CITY OF SALINA, KANSAS ("CITY')
HDR Engineering, Inc.{"CONSUL TANT")
BY:~
. ci Larso, ayor
By:
~.. P.E.
Sr. Vfce PI881dent, HDR EftgInIIIlng, Itx
Title:
ATTEST:
ATTEST:
BY:~~
Lieu Ann Elsey, City CI k
By:
Title:
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EXHIBIT A
SCOPE OF SERVICES
PROJECT NAME:
CITY OF SALINA OLD RIVER CHANNEL MASTER PLAN - WATER RIGHTS SERVICES
PROJECT DESCRIPTION:
Design Studios West, Inc. (DSW) and Wright Water Engineers, Inc. (WWE) are under contract
with the City of Salina (City) to provide the planning and engineering services outlined in the
Phase 2 - Old River Channel Master Plan. Part of the City's responsibility in this contract is to
determine how much water can be diverted from the Smoky Hill River for recreational water use.
An additional responsibility of the City under this contract is to prepare a recreational water right
application. This Scope of Services ~ummarizes the tasks necessary for HDR Engineering, Inc.
(HDR) to determine the volume/rate of water that can be appropriated for recreational use and to
prepare the recreational water right application.
SCOPE OF SERVICES PREFORMED BY ENGINEER:
Task 1: Review of Background Information and Conceptual Project Plans with WWE
The Consultant will collect and review background information supplied by Wright Water
Engineers, Inc. (WWE) to obtain background knowledge for the project. In addition, the
Consultant will attend one workshop with WWE to review background information and defme
key questions and objectives for the project. The workshop will include brainstorming
techniques to mitigate no flow/low flow diversion periods. WWE will present conceptual ideas
for project implementation in the workshop.
Task2: Smoky Hill River Streamflow Analysis
The Consultant will review streamflow data for the Smoky Hill River to bracket historical
streamflows to determine how much water may potentially be available during various times of
the year. The evaluation will focus on determining the 7QIO (average minimum streamflow for
seven consecutive days that has a probable recurrence interval of once in ten years), 50%
exceedence, and 10% exceedence streamflow values for a given month for the available period
of record. The work product will present the range of historical flow values observed for each
month under various meteorological conditions (wet, dry, average).
'-,
Task 3: Water Rights Workshop with DWR
The Consultant will conduct a workshop with the Division of Water Resources (DWR) to discuss
the City's options for water rights for the Old River Channel Master Plan. The workshop will
review WWE' s conceptual project plans and identify the specific water rights requirements for
each conceptual plan presented. The Consultant will conduct the meeting and prepare a letter
report summarizing the findings and potential options.
Task4: Water Supply for Recreational Use Feasibility Evaluation and Report
Alternative task if Tasks 2 and 3 produce a viable project plan. The Consultant will estimate the
quantity of water necessary to keep the Old River Channel filled to a prescribed height based on
other work done by WWE (including quantification of stormwater discharges to the channel).
The Consultant will compare the water requirements for each conceptual project plan to the
water available for diversion by DWR and will comment on the feasibility of each proposed
plan. In addition potential diversion locations will be evaluated. The Consultant will prepare a
report summarizing the evaluations and recommendations.
Task 5: Prepare Water Right Application
Alternative task if Tasks 2,3, and 4 produce a viable project plan. The Consultant will prepare a
water rights application to the DWR for a recreational water right for the Old River Channel
Master Plan. The water rights application will include figures of the water diversion location as
required for the application and schematics oflow flow mitigation techniques supplied by WWE.
ASSUMPTIONS:
. Consultant's involvement in low flow/no flow alternatives is limited to determining water
rights availability and conceptual water supply planning.
. The fee for the water rights application will be provided by the City.
EXHIBIT B
SCHEDULE
The project will be completed (DWR water right application submitted) by June 18,
2010.
Task
Notice to Proceed
1 - Review Background Data
2 - Meeting withWWE
3 - Smoky Hill River Streamflow Analysis
4 - Workshop with DWR
5 - Feasibility Evaluation and Report
6 - Water Right Application (submitted to DWR)
Comoleted Bv
January 11, 2010
January 14, 2010
January 14, 2010
February 12, 2010
February 19, 2010
April 16, 2010
June 18, 2010
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EXHIBIT E
Sec. 13-132. Affirmative action by contractors required.
(a) Any contractor entering into a contract with the city and such person's subcontractor shall take
affirmative action to insure that employees are treated equally without regard to their race, sex,
religion, age, color, national origin, ancestry or disability. Such affirmative action shall include, but not
be limited to, the following: Employment, upgrading, demotion or transfer, recruiting or recruitment,
advertising, layoff or termination,. rates of payor other forms of compensation and selection for
training, including apprenticeship. The contractor and subcontractor shall agree to post, in conspicuous
place~ available to employees and applicants for employment, notices to be provided by the director
setting forth provisions ofthis article. The contractor and such person's subcontractors shall provide all
affirmative action information and necessary documents to implement the compliance with the
requirements of all federal, state and local laws and ordinances. .
(b) It shall be no excuse that the employer has a collective bargaining agreement with any union providing
for exclusive referral or approval systems. The failure of the contractor or subcontractors to comply
with the requirements of this article shall be grounds for cancellation, termination, or suspension of the
contract, in whole or in part, by the board of commissioners with the contractor or subcontractors until
satisfactory proof with intent to comply will be submitted to and accepted by the board of
commissioners.
(Ord. No. 92-9493, ~ 1,2-3-92)
Sec. 13-133. Affirmative action plans.
Every contractor and subcontractor prior to entering into a contract with the city shall submit to the director
of human relations an acceptable written affirmative action plan which shall:
(1) Identify areas of employment, employment policies, and employment practices which require
action by the contractor or subcontractor to assure equal employment opportunity;
(2) Analyze these areas, policies and practices to determine what actions by said contractor or
subcontractor will be most effective;
(3) Establish a plan with goals and timetables designed to achieve equal employment opportunity;
and
(4) Include provisions for implementation, monitoring, and periodic evaluation in order to insure
that it continues to be a valid plan.
(Ord. No. 92-9493, S 1,2-3-92)
Sec. 13-134. Exemptions.
The provisions ofthis article shall not apply to:
(1) Contractors or suppliers who would not be considered as an "employer" as defined in section 13-
2; .
(2) Contracts and subcontracts not exceeding twenty thousand dollars ($20,000.00); and
(3) Call type or purchase order agreements which do not exceed twenty thousand dollars
($20,000.00) in total per calendar year; provided, vendors, contractors and suppliers who will
supply or expect to supply the city with goods or services exceeding twenty thousand dollars
($20,000.00) during the subsequent calendar year not be exempt from the requirements of this
article;
provided, the above exemptions shall not conflict with applicable state or federal laws.
(Ord. No. 92-9493, S 1,2-3-92)