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Agreement with HKgi - signedPROFESSIONAL SERVICES AGREEMENT AGREEMENT made this 28th day of November 2016, by and between the CITY OF CHANHASSSEN, a Minnesota municipal corporation ("City") and HKgi. 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. HKgi proposal for 2005 AUAR Update dated November 11, 2016 C. Fee Schedule dated November 11, 2016 2. SCOPE OF SERVICES. The City retains HKgi to provide the professional services described in the Contract Documents. The City may reduce the scope of services. 3. COMPENSATION. HKgi shall be paid by the City on an hourly basis in accordance with the Fee Schedule, attached hereto as Exhibit "A", but not to exceed $40,000 including reimbursables. The not -to -exceed fees shall not be adjusted if the estimated hours to perform a task, the number of estimated required meetings or any other estimate or assumption is exceeded except for as provided under section 5 below. The City will normally make payment within 35 days of receipt of a properly itemized invoice. 4. COMPLETION DATE. HKgi must complete the services specified in the Contract Documents on or before May 30, 2016. 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 HKgi in conjunction with this contract. 7. COMPLIANCE WITH LAWS AND REGULATIONS. In providing services hereunder, HKgi shall abide by all statutes, ordinances, rules and regulations pertaining to the provisions of services to be provided. 8. STANDARD OF CARE. HKgi shall exercise the same degrees of care, skill, and diligence in the performance of the services as is ordinarily possessed and exercised by a professional HKgi 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 HKgi's services. 1 9. INDEMNIFICATION. HKgi 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 attorney's fees, arising out of or by reason of the execution or performance of the work or 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. 10. INSURANCE. HKgi shall secure and maintain such insurance as will protect HKgi 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 $1,000,000 each occurrence/aggregate Automobile Liability $1,000,000 combined single limit Excess/Umbrella Liability $2,000,000 each occurrence/aggregate The City shall be named as an additional insured on the general liability and umbrella policies. HKgi shall secure and maintain a professional liability insurance policy. Said policy shall insure payment of damages for legal liability arising out of the performance of professional services for the City, in the insured's capacity as HKgi, if such legal liability is caused by a negligent act, error or omission of the insured or any person or organization for which the insured is legally liable. The policy shall provide minimum limits of $1,000,000 with a deductible maximum of $100,000. Before commencing work HKgi shall provide the City a certificate of insurance evidencing the required insurance coverage in a form acceptable to City. 11. INDEPENDENT CONTRACTOR. The City hereby retains HKgi as an independent contractor upon the terms and conditions set forth in this Agreement. HKgi is not an employee of the City and is free to contract with other entities as provided herein. HKgi shall be responsible for selecting the means and methods of performing the work. HKgi shall famish any and all supplies, equipment, and incidentals necessary for HKgi's performance under this Agreement. City and HKgi agree that HKgi shall not at any time or in any manner represent that HKgi or any of HKgi's agents or employees are in any manner agents or employees of the City. HKgi shall be exclusively responsible under this Agreement for HKgi'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. HKgi shall not enter into subcontracts for services provided under this Agreement without the express written consent of the City. HKgi shall comply with Minnesota Statute § 471.425. HKgi must pay Subcontractor for all undisputed services provided by Subcontractor within ten days of HKgi's receipt of payment from City. HKgi must pay interest of 1.5 percent per month or any part of a month to Subcontractor on any undisputed amount not paid on time to 2 Subcontractor. The minimum monthly interest penalty payment for an unpaid balance of $100 or more is $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. 16. CONTROLLING LAWNENUE. 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. 17. COPYRIGHT. HKgi shall defend actions or claims charging infringement of any copyright or patent by reason of the use or adoption of any designs, drawings 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 HKGI desires, the use of any design, devise, material or process covered by letters, patent or copyright, trademark or trade name, HKgi 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, HKgi 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. 19. RECORDS. HKgi shall maintain complete and accurate records of time and expense involved in the performance of services. 20. MINNESOTA GOVERNMENT DATA PRACTICES ACT. HKgi 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 HKgi pursuant to this Agreement. HKgi 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 HKgi receives a request to release data, HKgi must immediately notify City. City will give HKgi instructions concerning the release of the data to the requesting party before the data is released. HKgi agrees to defend, indemnify, and hold City, its officials, officers, agents, employees, and volunteers harmless from any claims resulting from HKgi's 3 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. TERMINATION OF THE AGREEMENT. The City may terminate this Agreement or any part thereof at any time, upon written notice to HKgi, effective upon delivery including delivery by facsimile or email. In such event, HKgi will be entitled to compensation for work performed up to the date of termination based upon the payment terms of this Agreement. CITY OF BY: / c�G D,enl ny Lauf burger, Mayor Dated: N ©V e rv6 r 3a , 2016 AN L,-e� Todd Gerhardt, City Manager Dated: � Yy\&eC 3n , 2016 HKgi BY: B •ad Scheib, Vice P sident Dated: tA 42- 1 2016 gAplan\2016 planning cases\2016-25 avienda - chan retail site\professional_services_-_chanhassen_hkgi.doc 10