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2022-65 CITY OF CHANHASSEN CARVER AND HENNEPIN COUNTIES, MINNESOTA DATE: August 22, 2022 RESOLUTION NO: 2022-65 MOTION BY: McDonald SECONDED BY: Rehm A RESOLUTION AWARDING A CONSULTANT AGREEMENT FOR CONSTRUCTION MATERIALS TESTING ON THE 2022 CITY PAVEMENT REHABILITATION AND 2022 LAKE LUCY RD REHABILITATION PROJECTS WHEREAS, pursuant to a request for proposals for Project No. 22-01 (2022 City Pavement Rehabilitation Project) and Project No. 20-03 (2022 Lake Lucy Road Rehabilitation Project), two proposals were received and evaluated that complied with the request for proposal: Bidder Quote Amount American Engineering and Testing $104,795.50 Braun Intertec $84,044.00 WHEREAS, it was evaluated by Staff that Braun Intertec had the lowest responsible quote and best met the scope of the request for proposals. A consultant contract amount of $88,000.00 is recommended to be awarded to allow for minor revisions to unit price testing quantities during construction to facilitate not needing to approve a contract revision. NOW THEREFORE, BE IT RESOLVED by the Chanhassen City Council: 1. The Mayor and Clerk are hereby authorized and directed to enter into a consulting agreement with Braun Intertec in the name of the City of Chanhassen for the materials testing services for the 2022 City Pavement Rehabilitation Project No. 22-01 and the 2022 Lake Lucy Road Rehabilitation Project No. 20-03 according to the proposal and the plans and specifications on file in the office of the City Engineer. PASSED AND ADOPTED by the Chanhassen City Council this 22nd day of August, 2022. ATTEST: Kim Meuwissen, City Clerk Elise Ryan, Mayor YES NO ABSENT Ryan Campion McDonald Schubert Rehm DocuSign Envelope ID: 05E978D5-8032-47C6-98FF-C1320841F39F 1 201749v1 PROFESSIONAL SERVICES AGREEMENT AGREEMENT made this 22nd day of August, 2022, by and between the CITY OF CHANHASSEN, a Minnesota municipal corporation ("City") and Braun Intertec Corporation "Consultant"). IN CONSIDERATION OF THEIR MUTUAL COVENANTS, THE PARTIES AGREE AS FOLLOWS: 1. SCOPE OF SERVICES. The City retains Consultant for geotechnical investigation and evaluation services. 2. CONTRACT DOCUMENTS. The following documents shall be referred to as the "Contract Documents," all of which shall be taken together as a whole as the contract between the parties as if they were set verbatim and in full herein: A. This Professional Services Agreement; B. Request for proposal for 2022 Construction Materials Testing for 2022 City Pavement Rehabilitation project (22-01) and Lake Lucy Rehabilitation project (20-03); C. Insurance Certificate; D. Consultant’s June 10, 2022 proposals for 2022 City Pavement Rehabilitation (CP 22-01) and Lake Lucy Road Rehabilitation Project (“Proposals”). In the event of conflict among the provisions of the Contract Documents, the order in which they are listed above shall control in resolving any such conflicts, with Contract Document “A” having the first priority and Contract Document “D” having the last priority. 3. COMPENSATION. Consultant shall be paid by the City for the services described in the Proposal a not to exceed fee of Eighty-Eight Thousand Dollars ($88,000), inclusive of expenses. Services performed directly by Consultant shall be paid at an hourly rate in accordance with the Proposal, subject to the not to exceed fee. The not to exceed fees and expenses shall not be adjusted if the estimated hours to perform a task, the number of required meetings, or any other estimate or assumption is exceeded. Consultant shall bill the City as the work progresses. Payment shall be made by the City within thirty-five (35) days of receipt of an invoice. 4. DOCUMENT OWNERSHIP. All reports, plans, models, diagrams, analyses, and information generated in connection with performance of this Agreement shall be the property of the City. The City may use the information for its purposes. DocuSign Envelope ID: 02DF1464-F3B0-4EA3-8892-0F25EEBCF65A 2 201749v1 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. COMPLIANCE WITH LAWS AND REGULATIONS. In providing services hereunder, Consultant shall abide by all statutes, ordinances, rules and regulations pertaining to the provisions of services to be provided. 7. STANDARD OF CARE. Consultant shall exercise the same degree of care, skill, and diligence in the performance of the services as is ordinarily possessed and exercised by a professional consultant under similar circumstances. No other warranty, expressed or implied, is included in this Agreement. City shall not be responsible for discovering deficiencies in the accuracy of Consultant’s services. 8. INDEMNIFICATION. Consultant shall indemnify and hold harmless the City, its officers, agents, and employees, of and from any and all claims, demands, actions, causes of action, including costs and reasonable attorney's fees, arising out of or by reason of the Consultant’s negligent acts or omissions during the execution or performance of the services provided for herein and further agrees to defend at its sole cost and expense any action or proceeding commenced for the purpose of asserting any claim of whatsoever character arising hereunder. In no event shall either party be liable for special, incidental, consequential, or punitive damages, including but not limited to those arising from delay, loss of use, loss of profits or revenue, loss of financial commitments or fees, or the cost of capital, regardless of whether such damages are caused by breach of contract, willful misconduct, negligent act or omission, or other wrongful act. 9. INSURANCE. Consultant shall secure and maintain such insurance as will protect Consultant from claims under the Worker’s Compensation Acts, automobile liability, and from claims for bodily injury, death, or property damage which may arise from the performance of services under this Agreement. Such insurance shall be written for amounts not less than: Commercial General Liability $2,000,000 each occurrence/aggregate Automobile Liability $2,000,000 combined single limit Professional Liability $2,000,000 each occurrence/aggregate The City shall be named as an additional insured on the general liability policy on a primary and non- contributory basis. Before commencing work, the Consultant shall provide the City a certificate of insurance evidencing the required insurance coverage in a form acceptable to City. 10. INDEPENDENT CONTRACTOR. The City hereby retains Consultant as an independent contractor upon the terms and conditions set forth in this Agreement. Consultant is not an employee of the City and is free to contract with other entities as provided herein. Consultant shall be responsible for selecting the means and methods of performing the work. Consultant shall furnish any and all supplies, equipment, and incidentals necessary for Consultant’s performance under this DocuSign Envelope ID: 02DF1464-F3B0-4EA3-8892-0F25EEBCF65A 3 201749v1 Agreement. City and Consultant agree that Consultant shall not at any time or in any manner represent that Consultant or any of Consultant's agents or employees are in any manner agents or employees of the City. Consultant shall be exclusively responsible under this Agreement for Consultant’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. 11. SUBCONTRACTORS. Consultant shall not enter into subcontracts for services provided under this Agreement without the express written consent of the City. Consultant shall comply with Minnesota Statutes § 471.425. Consultant must pay subcontractors for all undisputed services provided by subcontractors within ten (10) days of Consultant’s receipt of payment from City. Consultant must pay interest of one and five-tenths percent (1.5%) per month or any part of a month to subcontractors on any undisputed amount not paid on time to subcontractors. The minimum monthly interest penalty payment for an unpaid balance of One Hundred Dollars ($100.00) or more is Ten Dollars ($10.00). 12. CONTROLLING LAW/VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. In the event of litigation, the exclusive venue shall be in the District Court of the State of Minnesota for Carver County Minnesota. 13. MINNESOTA GOVERNMENT DATA PRACTICES ACT. Consultant 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 Consultant pursuant to this Agreement. Consultant 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 Consultant receives a request to release data, Consultant must immediately notify City. City will give Consultant instructions concerning the release of the data to the requesting party before the data is released. Consultant agrees to defend, indemnify, and hold City, its officials, officers, agents, employees, and volunteers harmless from any claims resulting from Consultant’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. 14. COPYRIGHT. Consultant shall defend actions or claims charging infringement of any copyright or software license by reason of the use or adoption of any software, designs, drawings or specifications supplied by it, and it shall hold harmless the City from loss or damage resulting therefrom. 15.PATENTED DEVICES, MATERIALS AND PROCESSES. If the Contract requires, or the Consultant desires, the use of any design, devise, material or process covered by letters, patent or copyright, trademark or trade name, the Consultant 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, the Consultant shall indemnify and DocuSign Envelope ID: 02DF1464-F3B0-4EA3-8892-0F25EEBCF65A 4 201749v1 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 services agreed to be performed under the Contract, and shall indemnify and defend the City for any costs, liability, expenses and attorney's fees that result from any such infringement. 16. RECORDS. Consultant shall maintain complete and accurate records of hours worked and expenses involved in the performance of services. 17. ASSIGNMENT. Neither party shall assign this Agreement, or any interest arising herein, without the written consent of the other party. 18. 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. 19. 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. 20. TERMINATION. This Agreement may be terminated by the City for any reason or for convenience upon written notice to the Consultant. In the event of termination, the City shall be obligated to the Consultant for payment of amounts due and owing including payment for services performed or furnished to the date and time of termination. Dated: _______________, 20__.CITY OF CHANHASSEN BY: _____________________________________________ Elise Ryan, Mayor BY: _____________________________________________ Laurie Hokkanen, City Manager Dated: September 20, 2022._______________________ BY: _____________________________________________ Its Vice President Charles Cadenhead DocuSign Envelope ID: 02DF1464-F3B0-4EA3-8892-0F25EEBCF65A 9/20/2022