Kimley-Horn_Professional Services Agreement for #24-01 Design
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PROFESSIONAL SERVICES AGREEMENT
AGREEMENT made this 30th day of October, 2023, by and between the CITY OF
CHANHASSEN, a Minnesota municipal corporation ("City") and Kimley-Horn ("Consultant").
IN CONSIDERATION OF THEIR MUTUAL COVENANTS, THE PARTIES
AGREE AS FOLLOWS:
1. SCOPE OF SERVICES. The City retains Consultant for design and construction
services for the 2024 City Pavement Rehabilitation Project.
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 (RFP) dated September 29, 2023;
C. Insurance Certificate;
D. Consultant’s Proposal dated October 13, 2023 (“Proposal”) and modification
by email dated October 18, 2023. Email dated October 26, 2023 revises the
summation error identified in the fee spreadsheet.
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 Four Hundred Thirty-Three Thousand Twenty-Five Dollars
($433,025.00), 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
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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.
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
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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
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
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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. 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. _______________________
BY: _____________________________________________
Its
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11/1/2023 KIMLEY-HORN AND ASSOCIATES, INC
Daniel J. Coyle
Vice President
11/1/2023
From: Kirsch, Michael <Michael.Kirsch@kimley-horn.com>
Sent: Thursday, October 26, 2023 8:49 AM
To: Bender, George
Cc: Larson, Chadd
Subject: RE: 24-01 Proposal Ques1on
Aachments: 2024 City Pavement Rehabilita1on Fee Es1mate-Final-20231026.pdf
George,
A5ached is the updated fee es1mate for your documenta1on. This shows the 13k correc1on to the
project total, including the Final Design Surveying task.
Thanks,
Michael
Michael Kirsch, PE
Kimley-Horn | 11995 Singletree Lane, Suite 225, Eden Prairie, MN 55344
Direct: 651 643 0481 | Mobile: 763 607 7717
Connect with us: Twitter | LinkedIn | Facebook | Instagram |
From: Kirsch, Michael
Sent: Wednesday, October 18, 2023 6:46 PM
To: Bender, George <gbender@chanhassenmn.gov>
Cc: Larson, Chadd <Chadd.Larson@kimley-horn.com>
Subject: RE: 24-01 Proposal Question
George,
Thank you for reaching out to clarify some items of our proposal. We discussed the inspec1on needs
and have adjusted our lead inspector hours to be5er suit the City’s needs for this project. We
understand the importance of having a single point of contact during construc1on that can lead weekly
construc1on mee1ngs, resolve resident disputes and has a proven track record in the City for ge<ng
projects built within 1me and budget. We have adjusted the hours for our Lead Inspector (Bob Schmidt)
to 300 hours. In order to do so, we need to adjust the total project fees from $407K to $420k, to reflect
the rate of our Lead inspector (see a5ached our updated fee spreadsheet). If you would like us to send
over a full new proposal with the fees and hours adjusted to match this fee schedule, we can do that
tomorrow. As noted in our conversa1on, our main inspector for the project we believe would be David
Carpenter. He has 3 seasons of construc1on inspec1on experience, one with the City of Chanhassen.
I was able to get clarifica1on from our u1lity engineer Jus1n Conner about our partnership with Water
Conserva1on Services. We have used them on several projects at both the airport and the City of
Richfield. We es1mated the rate of the acous1c leak detec1on for this project to be around $300-
$600. In the future, we will include this detail in our proposal write-up as I understand it’s undefined.
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Again, I would like to express my genuine apprecia1on for the opportunity to partner with the City of
Chanhassen on this project.
Thanks,
Michael
Michael Kirsch, PE
Kimley-Horn | 11995 Singletree Lane, Suite 225, Eden Prairie, MN 55344
Direct: 651 643 0481 | Mobile: 763 607 7717
Connect with us: Twitter | LinkedIn | Facebook | Instagram |
From: Bender, George <gbender@chanhassenmn.gov>
Sent: Tuesday, October 17, 2023 5:15 PM
To: Kirsch, Michael <Michael.Kirsch@kimley-horn.com>
Cc: Larson, Chadd <Chadd.Larson@kimley-horn.com>
Subject: 24-01 Proposal Question
Michael,
I’ve been reviewing your proposal and I’d like some clarifica1on regarding the construc1on inspec1on
por1on. Could you provide some addi1onal detail regarding how this por1on of the project will be
handled? My current interpreta1on is K-H isn’t iden1fying the project inspector (1250 hours) in your
proposal and that the Lead Inspector (Bob) is projected to be involved for 100 hours with the project.
Thank you,
George Bender, PE
Assistant City Engineer
CITY OF CHANHASSEN
PH. 952.227.1164
FX. 952.227.1110
www.ChanhassenMN.gov
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DETAILED ESTIMATED COST SUMMARY
2024 CITY STREET REHABILITATION PROJECT
CHANHASSEN, MN
PREPARED BY: KIMLEY-HORN AND ASSOCIATES, INC.
TITLE DEPUTY PROJECT PROJECT PROJECT DESIGN CADD LEAD CONSTRUCTION CONSTRUCTION SUB-TOTAL TOTAL
MANAGER MANAGER ENGINEER ENGINEER TECHNICIAN INSPECTOR INSPECTOR CONSULTANT COST HOURS
1. PROJECT MANAGEMENT, DESIGN, AND BIDDING SERVICES
a) Preparation of Feasibility Report 3 4 20 40 10 $10,895 77
b) Preparation of 360 Degree Video 2 4 16 4 $3,040 26
c) Preliminary and Final Plans 14 80 224 290 265 2 $119,670 875
d) Permitting and Approvals 2 12 30 60 30 $18,510 134
e) Right of Way/Easement Identification 1 2 4 $920 7
f) Preparation of Assessment Rolls 4 10 $1,950 14
g) Public Engagement Support 10 30 $5,550 40
h) Bidding Services 2 4 8 $2,040 14
TOTAL 19 99 296 442 325 6 $162,575 1187
2. DESIGN SURVEYING
a) Design Surveying 100 $10,000 100
b) Final Design Surveying 130 $13,000 130
TOTAL 230 $23,000 230
3. MEETINGS
a) City Council Meeting (3)6 2 3 $2,040 11
b) Neighborhood Information Meetings (2)4 4 $1,320 8
c) Staff Meetings As Necessary (4)8 8 $2,640 16
d) Individual Property Owner Meetings As Needed (5)10 5 $2,550 15
TOTAL 6 24 17 3 $8,550 50
4. SURVEYING FOR CONSTRUCTION SERVICES
a) Construction Staking 300 $30,000 300
TOTAL 300 $30,000 300
5. CONSTRUCTION ADMINISTRATION AND OBSERVATION
a) Construction Administration 4 65 $12,600 69
b) Construction Observation 300 1050 $168,000 1350
TOTAL 4 65 300 1050 $180,600 1419
6. PREPARATION OF AS-BUILT DRAWINGS
a) Prepare As-Built Drawings 2 20 8 $3,900 30
b) Project Closeout 2 10 $1,400 12
TOTAL 4 30 8 $5,300 42
PROJECT SUBTOTALS 29 188 317 442 358 308 1056 530 $410,025 3228
REIMBURSABLE EXPENSES $23,000
PROJECT TOTALS $433,025 3228
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