Kimley_Horn_Professional_Services_Agreement_Market_Boulevard1
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SERVICES AGREEMENT-Kimley Horn_Market Blvd Design.docx
PROFESSIONAL SERVICES AGREEMENT
AGREEMENT made this 27th day of February, 2023, by and between the CITY OF
CHANHASSEN, a Minnesota municipal corporation ("City") and Kimley-Horn and Associates, Inc.
Consultant").
IN CONSIDERATION OF THEIR MUTUAL COVENANTS, THE PARTIES
AGREE AS FOLLOWS:
1.SCOPE OF SERVICES. The City retains Consultant for Professional Services
related to the Market Blvd. Reconstruction Project, Project No. ENG 25-02.
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.Insurance Certificate;
C.Consultant’s February 7, 2023 proposal for Preliminary and Final Design
Services for Market Boulevard Improvements (“Proposal”).
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 “C” 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 Three Hundred Eighty-Six Thousand Four Hundred Seventy
Dollars ($386,470.00), 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. Any modifications made by the City
to any of the Consultant’s documents, or any use, partial use or reuse of the documents without
written authorization or adaptation by the Consultant will be at the City's sole risk and without
liability to the Consultant, and the City shall indemnify, defend and hold the Consultant harmless
from all claims, damages, losses and expenses, including but not limited to attorneys' fees,
resulting therefrom.
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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 and employees, from claims, demands, actions, causes of action, including costs and
reasonable attorney's fees, to the extent caused by the negligent performance of the services provided
for herein. The Consultant shall not be held liable for the sole negligence of the City.
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
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.
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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
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.
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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. The Consultant shall have the
right to terminate this Agreement upon seven days’ notice to the City upon breach by City of any
of its obligations under this Agreement.
Dated: _______________, 2023.CITY OF CHANHASSEN
BY: _____________________________________________
Elise Ryan, Mayor
BY: _____________________________________________
Laurie Hokkanen, City Manager
Dated: _______________, 2023.KIMLEY-HORN AND ASSOCIATES, INC.
BY: _____________________________________________
Its
February 14
Daniel J. Coyle
Vice President
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