Professional Services Agreement with BKV for Chanhassen Bluffs Sports Complex 02-12-2024227170v1 1PROFESSIONAL SERVICES AGREEMENT AGREEMENT made this 12 day of February 2024, by and between the CITY OF CHANHASSSEN, a Minnesota municipal corporation ("City") and BKV Group, a Minnesota corporation ("BKV Group"). IN CONSIDERATION OF THEIR MUTUAL COVENANTS THE PARTIES AGREE AS FOLLOWS: 1. CONTRACT DOCUMENTS. The Contract consists of the following documents. In the event of conflict among the documents the conflict shall be resolved by the order in which they are listed with the document listed first having the first priority and the document listed last having the last priority: A. This Professional Services Agreement B. BKV Group’s proposal Re Conceptual Design for the Chanhassen Bluffs Sports Complex dated January 22, 2024 (“Proposal”) 2. SCOPE OF SERVICES. The City retains BKV Group to provide the professional services: described in the Contract Documents. 3. COMPENSATION. BKV Group shall be paid by the City for a not to exceed fee in the amount of $74,500 in accordance with the Proposal. The lump sum fee in the Proposal is inclusive of all taxes, costs, permit fees, profit, overhead, expenses and compensation of every kind related to the work under the Contract Documents to be performed by BKV Group, except for actual costs for travel and printing which are estimated at $1,500. The lump sum fee shall not be a djusted if the estimated hours to perform a task,
the number of estimated required meetings or any other estimate or assumption is exceeded. The City will
normally make payment within 35 days of receipt of a properly item ized invoice following completion of
each of the fourteen Tasks identified in the Proposal. 4. COMPLETION DATE. BKV Group must complete the service specified in the Contract Documents on or before June 1, 2024. 5. CHANGE ORDERS. All change orders, regardless of amount, must be approved in
advance and in writing by the City. No payment will be due or made for work done in advance of such
approval. 6. DOCUMENTS. The City shall be the owner of all documents, reports, studies, analysis and the like prepared by BKV Group in conjunction with this contract. 7. COMPLIANCE WITH LAWS AND REGULATIONS. In providing services hereunder, BKV Group shall abide by all statutes, ordinances, rules and regulations pertaining to the provisions of services to be provided. DocuSign Envelope ID: 5D88AB01-27B2-4F57-AE06-AA9CD8895AFD
227170v1 2 8. STANDARD OF CARE. BKV Group shall exercise the same degrees of care, skill, a nd
diligence in the performance of the services as is ordinarily poss essed and exercised by a professional
BKV Group under similar circumstances. No other warranty, expre ssed or implied, is included in this
Agreement. City shall not be responsible for discovering defici encies in the accuracy of BKV Group’s
services. 9. INDEMNIFICATION. BKV Group shall indemnify and hold harmless the City, its
officers, agents, and employees, of and from any and all claims, deman ds, actions, causes of action,
including costs and attorney's fees, to the extent they arise out of or by reason of the negligent execution
or performance of the services provided for herein or breach of c ontract and further agrees to defend at its
sole cost and expense any action or proceeding commenced for the purpose of asserting any claim of
negligence or breach of contact. 10. INSURANCE. BKV Group, at its expense, shall procure and maintain in force for the
duration of this Agreement the following minimum insurance coverages: A. General Liability. BKV Group agrees to maintain commercial general liability
insurance in a minimum amount of $1,000,000 per occurrence; $2,000,000 annual
aggregate. The policy shall cover liability arising from premises, opera tions,
products completed operations, personal injury, advertising injury, and
contractually assumed liability. The City shall be endorsed as additional insured. B. Automobile Liability. If BKV Group operates a motor vehicle in performing the
Services under this Agreement, BKV Group shall maintain commercial
automobile liability insurance, including owned, hired, and non-owned
automobiles, with a minimum liability limit of $1,000,000 combined single limit. C. Workers’ Compensation. BKV Group agrees to provide workers’ compensation
insurance for all its employees in accordance with the statutory requiremen ts of
the State of Minnesota. BKV Group shall also carry employers liability covera ge
with minimum limits are as follows:
• $500,000 – Bodily Injury by Disease per employee
• $500,000 – Bodily Injury by Disease aggregate
• $500,000 – Bodily Injury by Accident D. Professional (Errors and Omissions) Insurance. BKV Group will maintain
professional liability insurance for all claims BKV Group may become l egally
obligated to pay resulting from any actual or alleged negligent act, error, or
omission related to BKV Group’s professional services required under this
Agreement. BKV Group is required to carry the following minimum limits:
$1,000,000 per occurrence; $2,000,000 annual aggregate. The retroactive or prior
acts date of such coverage shall not be after the effective date of this Agre ement,
and BKV Group shall maintain such insurance for a period of at least three (3) years following completion of the Services. If such insurance is discontinued,
extended reporting period coverage must be obtained by BKV Group to fulfill this
requirement.
DocuSign Envelope ID: 5D88AB01-27B2-4F57-AE06-AA9CD8895AFD
227170v1 3 BKV Group shall, prior to commencing the Services, deliver to the City a Certifi cate of Insurance as
evidence that the above coverages are in full force and effect. The insurance requirements may be met through any combination of primary and umbrella/excess insurance.
BKV Group’s policies shall be the primary insurance to any other valid an d collectible insurance
available to the City with respect to any claim arising out of BKV Group’s pe rformance under this
Agreement. BKV Group’s policies and Certificate of Insurance shall contain a pr ovision that coverage afforded
under the policies shall not be cancelled without at least thirty (30) days advanc ed written notice to the
City. 11. INDEPENDENT CONTRACTOR. The City hereby retains BKV Group as an independent contractor upon the terms and conditions set forth in this Agreement. BKV Group is not an employee of the City and is free to contract with other entities as provided herein. BKV Group shall be responsible for selecting the means and methods of performing the work. BKV Group shall furnish any and all supplies, equipment, and incidentals necessary for BKV Group's performance under this Agreement. City and BKV Group agree that BKV Group shall not at any time or in any manner represent that BKV Group or any of BKV Group's agents or employees are in any manner agents or employees of the City. BKV Group shall be exclusively responsible under this Agreement for BKV Group's own FICA payments, workers compensation payments, unemployment compensation payments, withholding amounts, and/or self-employment taxes if any such payments, amounts, or taxes are required to be paid by law or regulation. 12. SUBCONTRACTORS. BKV Group shall not enter into subcontracts for services provided under this Agreement, except as indicated in BKV Group’s proposal, without the express written consent of the City. BKV Group shall comply with Minnesota Statute § 471.425. BKV Group must pay subcontractor for all undisputed services provided by subcontractor within ten (10) days of BKV GROUP’s receipt of payment from City. BKV Group must pay interest of one and five-tenths (1.5) percent per month or any part of a month to subcontractor on any undisputed amount not paid on time to subcontractor. The minimum monthly interest penalty payment for an unpaid balance of One Hundred and No/100ths Dollars ($100) or more is Ten and No/100ths Dollars ($10). 13. ASSIGNMENT. Neither party shall assign this Agreement, nor any interest arising herein, without the written consent of the other party. 14. WAIVER. Any waiver by either party of a breach of any provisions of this Agreement shall not affect, in any respect, the validity of the remainder of this Agreement. 15. ENTIRE AGREEMENT. The entire agreement of the parties is contained herein. This Agreement supersedes all oral agreements and negotiations between the parties relating to the subject matter hereof as well as any previous agreements presently in effect between the parties relating to the subject matter hereof. Any alterations, amendments, deletions, or waivers of the provisions of this Agreement shall be valid only when expressed in writing and duly signed by the parties, unless otherwise provided herein. DocuSign Envelope ID: 5D88AB01-27B2-4F57-AE06-AA9CD8895AFD
227170v1 4 16. CONTROLLING LAW/VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. I n the event of litigation, the exclusive venue shall be
in the District Court of the State of Minnesota for Carver County. 17. COPYRIGHT. BKV Group shall defend actions or claims charging infringement of any copyright or patent by reason of the use or adoption of any designs, draw ings or specifications supplied
by it, and it shall hold harmless the City from loss or damage resulting there from. 18. PATENTED DEVICES, MATERIALS AND PROCESES. If the contract requires, or
BKV Group desires, the use of any design, devise, material or pro cess covered by letters, patent or
copyright, trademark or trade name, BKV Group shall provide for such use by suitable legal agreement
with the patentee or owner and a copy of said agreement shall be filed with the City. If no such agreement
is made or filed as noted, BKV Group shall indemnify and hold harmless the City from any and all claims
for infringement by reason of the use of any such patented designed, device, material or process, or any
trademark or trade name or copyright in connection with the servic es agreed to be performed under the
contract, and shall indemnify and defend the City for any costs, liab ility, expenses and attorney's fees that
result from any such infringement. 19. AUDIT. Pursuant to Minnesota Statutes, § 16C.05, Subdivision 5, BKV Group agrees that the City, the State Auditor, or any of their duly authorized representatives at any time during normal business hours and as often as they may reasonably deem necessary, shall have access to and the right to examine, audit, excerpt, and transcribe any books, documents, papers, records, etc., which are pertinent to the accounting practices and procedures of the City, and involve transactions relating to this Agreement. BKV Group agrees to maintain these records for a period of six years from the date of termination of this Agreement. 20. MINNESOTA GOVERNMENT DATA PRACTICES ACT. BKV Group must comply with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13, as it applies to (1) all data provided by the City pursuant to this Agreement, and (2) all data, created, collected, received, stored, used, maintained, or disseminated by BKV Group pursuant to this Agreement. BKV Group is subject to all the provisions of the Minnesota Government Data Practices Act, including but not limited to the civil remedies of Minnesota Statutes Section 13.08, as if it were a government entity. In the event BKV Group receives a request to release data, BKV Group must immediately notify City. City will give BKV Group instructions concerning the release of the data to the requesting party before the data is released. BKV Group agrees to defend, indemnify, and hold City, its officials, officers, agents, employees, and volunteers harmless from any claims resulting from BKV Group’s officers’, agents’, city’s, partners’, employees’, volunteers’, assignees’ or subcontractors’ unlawful disclosure and/or use of protected data. The terms of this paragraph shall survive the cancellation or termination of this Agreement. 21. NOTICES. All notices, demands or requests required or permitted to be made pursuant to or under this Agreement must be in writing and deemed valid if sent by registered mail, return receipt requested, or delivered by overnight delivery service providing written evidence of delivery, or by hand delivery by reputable independent courier providing written evidence of delivery, addressed as follows: DocuSign Envelope ID: 5D88AB01-27B2-4F57-AE06-AA9CD8895AFD
227170v1 5 Notice to City: City Manager PO Box 147 Chanhassen, MN 55317 Notice to BKV Group: Paul Michell BKV Group 222 N 2nd St #101, Minneapolis, MN 55401 22. NONDISCRIMINATION. In the hiring of employees to perform work under this Agreement, the BKV Group shall not discriminate against any person by reason of any characteristic or classification protected by state or federal law. 23. TERMINATION OF THE AGREEMENT. The City may terminate this Agreement or
any part thereof at any time, upon written notice to BKV Group, e ffective upon delivery including delivery
by facsimile or email. In such event, BKV Group will be entit led to compensation for work performed
up to the date of termination based upon the payment terms of this Agreement. CITY OF CHANHASSEN BY: _______________________________ Elise Ryan, Mayor AND: ________________________________ Laurie Hokkanen, City Manager BKV Group BY: _______________________________ Paul Michell, Partner, Government Practice Leader DocuSign Envelope ID: 5D88AB01-27B2-4F57-AE06-AA9CD8895AFD