Professional Services Agreement with SEH for Final Design of Lake Ann Park Preserve 01-22-2024227170v1 1
PROFESSIONAL SERVICES AGREEMENT
AGREEMENT made this 22 day of January, 2024, by and between the CITY OF
CHANHASSEN, a Minnesota municipal corporation ("City"), and SHORT ELLIOTT
HENDRICKSON INC., a Minnesota corporation ("SEH").
IN CONSIDERATION OF THEIR MUTUAL COVENANTS, THE PARTIES
AGREE AS FOLLOWS:
1. CONTRACT DOCUMENTS. The Contract consists of this Professional Services
Agreement together with the attached exhibits for the final design of the Lake Ann Park Preserve
Improvements.
2. SCOPE OF SERVICES. The City retains SEH to provide the professional services
described in the Scope of Services attached hereto as Exhibit A.
3. COMPENSATION. SEH shall be paid by the City a lump sum fee in the amount of $114,900
in accordance with Exhibit B of this agreement, together with expenses not covered under the lump sum fee
amount as further provided in Exhibit B of this Agreement. Payment will be made in accordance with Exhibit
B within 35 days of the City’s receipt of the properly itemized invoices for work.
4. COMPLETION DATE. SEH must complete the service specified in the Contract
Documents on or before _______________.
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. To the extent Consultant owns the relevant intellectual property and has
been paid for its services, the City shall be the owner of all documents, reports, studies, analysis and the like
delivered by SEH expressly required by this contract.
7. COMPLIANCE WITH LAWS AND REGULATIONS. In providing services hereunder,
SEH shall abide by all statutes, ordinances, rules, and regulations pertaining to the provisions of services to
be provided.
8. STANDARD OF CARE. SEH 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 SEH under
similar circumstances. No other warranty, expressed or implied, is included in this Agreement. The City
shall not be responsible for discovering deficiencies in the accuracy of SEH’s services.
9. INDEMNIFICATION. SEH shall indemnify and hold harmless the City, its officers,
agents, and employees of and from any and all claims, demands, actions, and causes of action, including
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costs and attorney's fees, to the extent caused by the Consultant’s negligence. The Consultant disclaims
any duty to defend the City.
10. INSURANCE. SEH, at its expense, shall procure and maintain in force for the duration
of this Agreement the following minimum insurance coverages:
A. General Liability. SEH 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, operations,
products completed operations, personal injury, advertising injury, and
contractually assumed liability. The City shall be endorsed as additional insured.
B. Automobile Liability. If SEH operates a motor vehicle in performing the
Services under this Agreement, SEH 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. SEH agrees to provide workers’ compensation
insurance for all its employees in accordance with the statutory requirements of
the State of Minnesota. SEH shall also carry employer's liability coverage with
minimum limits 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. SEH will maintain
professional liability insurance for all claims SEH may become legally obligated
to pay resulting from any negligent act, negligent error, or negligent omission
related to SEH’s professional services required under this Agreement. SEH is
required to carry the following minimum limits: $1,000,000 per occurrence and
$2,000,000 annual aggregate. The retroactive or prior acts date of such coverage
shall not be after the effective date of this Agreement, and SEH 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 SEH to fulfill this requirement.
SEH shall, prior to commencing the Services, deliver to the City a Certificate 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.
SEH’s policies shall be the primary insurance to any other valid and collectible insurance available to
the City with respect to any claim arising out of SEH’s performance under this Agreement.
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SEH’s policies and Certificate of Insurance shall contain a provision that coverage afforded under the
policies shall not be cancelled without at least thirty (30) days advanced written notice to the City.
11. INDEPENDENT CONTRACTOR. The City hereby retains SEH as an independent
contractor upon the terms and conditions set forth in this Agreement. SEH is not an employee of the City and
is free to contract with other entities as provided herein. SEH shall be responsible for selecting the means and
methods of performing the work. SEH shall furnish any and all supplies, equipment, and incidentals necessary
for SEH's performance under this Agreement. City and SEH agree that SEH shall not at any time or in any
manner represent that SEH or any of SEH's agents or employees are in any manner agents or employees of
the City. SEH shall be exclusively responsible under this Agreement for SEH'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. SEH shall not enter into subcontracts for services provided under
this Agreement without the express written consent of the City. SEH shall comply with Minnesota Statute §
471.425. SEH must pay a subcontractor for all undisputed services provided by the subcontractor within ten
(10) days of SEH’s receipt of payment from the City. SEH must pay interest of one and five-tenths (1.5)
percent per month or any part of a month to a subcontractor on any undisputed amount not paid on time to
the subcontractor. The minimum monthly interest penalty payment for an unpaid balance of One Hundred
and No/100ths Dollars ($100.00) or more is Ten and No/100ths Dollars ($10.00).
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 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.
17. COPYRIGHT. SEH 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. SEH shall indemnify and
hold harmless the City from any and all claims for infringement by reason of the use of any patented
design, 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.
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19. AUDIT. Pursuant to Minnesota Statutes, § 16C.05, Subdivision 5, SEH 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. SEH 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. SEH 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 SEH pursuant to this Agreement. SEH 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 SEH receives a request to release data,
SEH must immediately notify the City. The City will give SEH instructions concerning the release of the data
to the requesting party before the data is released. SEH agrees to defend, indemnify, and hold the City, its
officials, officers, agents, employees and volunteers harmless from any claims resulting from SEH’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:
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Notice to City: Park & Recreation Director
PO Box 147
Chanhassen, MN 55317
Notice to SEH:
22. NONDISCRIMINATION. In the hiring of employees to perform work under this
Agreement, the SEH 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 SEH, effective upon delivery, including delivery by
facsimile or email. In such event, SEH will be entitled to compensation for work performed up to the date
of termination based upon the payment terms of this Agreement.
24. REUSE. All work prepared by the Consultant pursuant to this Agreement is not intended
or represented to be suitable for reuse by the City or others on extensions of the project or on any other
project. Any reuse of Consultant's work without written consent or adaptation by Consultant for the
specific purpose intended will be at the City's sole risk and without liability or legal exposure to
Consultant, and the City shall release Consultant from all claims arising from such use.
25. CONSEQUENTIAL DAMAGES. Neither Party shall be liable to the other for consequential
damages, including without limitation lost rentals; increased rental expenses; loss of use; loss of income;
lost profit, financing, business, or reputation; and loss of management or employee productivity incurred
by one another or their subsidiaries or successors, regardless of whether such damages are foreseeable and
are caused by breach of contract, willful misconduct, negligent act or omission, or other wrongful act of
either of them.
26. DISPUTE RESOLUTION. Any dispute between the City and Consultant arising out of or
relating to this Agreement or the work (except for the Consultant's unpaid invoices) shall be submitted to
mediation as a precondition to litigation unless the parties mutually agree otherwise.
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CITY OF CHANHASSEN
BY: _______________________________
Elise Ryan, Mayor
AND: ________________________________
Laurie Hokkanen, City Manager
SHORT ELLIOTT HENDRICKSON INC
BY: _______________________________
Toby Muse, Principal
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EXHIBIT A
SEH SCOPE
Final Design
Boardwalk
Provide final plans and specifications to construct three boardwalk sections, including structural
details for overlook/bumpouts on Boardwalk A and potentially Boardwalk B, if feasible.
Provide new sheets including: Title Sheet, Statement of Estimated Quantities, and Access Plan.
Produce final plans and specifications.
Update Engineer’s Estimate. Trail
design
Finalize preliminary 60% plans based on comments provided by the City.
Provide new plan sheets including: SWPPP, General Notes, Statement of Estimated Quantities,
Alignment Plans, and Standard Plans/Details.
Produce final plans and specifications.
Update Engineer’s Estimate
Stormwater BMPs
Soil borings were complete for the preliminary design. However, the final design of the stormwater
BMPs will require three additional borings near the existing parking lot. SEH will subcontract with
American Engineering Testing (AET) to complete these borings. It is anticipated that borings will be
completed in mid-December 2023.
Analyze soil borings and design BMPs per watershed requirements to treat runoff from parking lot.
Create Construction Plans, Grading Plans, and Detail sheets for the BMPs.
Parking Lot
Complete a final design based on the preliminary concept created by HKGi.
Create Construction Plans and Grading Plan sheets for the parking lot.
Permitting
Under this contract we will finalize the acquisition of necessary permits, including Riley-Purgatory
Bluff Creek Watershed District, NPDES, and Metropolitan Council permits as needed. Permitting will
cover both boardwalk and trail projects.
Project coordination
Coordination shall include bi-weekly design meetings between the City, SEH, and HKGi,
coordination with regulatory agencies including Riley Creek Watershed District, the DNR and Army
Corps, internal team coordination within SEH as well as coordination with subs (AET and HKGi)
and general project management such as project scheduling and invoicing.
Bidding support
Two separate bidding packages will be provided:
o The first will include all boardwalk construction and shall be bid first.
o The second will include the trails, BMPs, and parking lot improvements.
For both bid packages, SEH will prepare all final bidding documents (including prevailing wages for
the boardwalk), advertise on QuestCDN, answer bidder questions, issue any addendums (as necessary),
compile bids, prepare a bid tabulations, and make recommendations for each contract award.
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EXHIBIT B
Payments to Consultant for Services and Expenses
Using the Lump Sum Basis Option
The Agreement for Professional Services is amended and supplemented to include the following agreement of
the parties:
Lump Sum Basis Option
The Client and Consultant select the Lump Sum Basis for Payment for services provided by Consultant.
During the course of providing its services, Consultant shall be paid monthly based on Consultant’s estimate
of the percentage of the work completed. Necessary expenses and equipment are provided as a part of
Consultant’s services and are included in the initial Lump Sum amount for the agreed upon Scope of Work .
Total payments to Consultant for work covered by the Lump Sum Agreement shall not exceed the Lump Sum
amount without written authorization from the Client.
The Lump Sum amount includes compensation for Consultant’s services and the services of Consultant ’s
Consultants, if any for the agreed upon Scope of Work. Appropriate amounts have been incorporated in the
initial Lump Sum to account for labor, overhead, profit, expenses and equipment charges. The Client agrees
to pay for other additional services, equipment, and expenses that may become necessary by amendment to
complete Consultant’s services at their normal charge out rates as published by Consultant or as available
commercially.
Expenses Not Included in the Lump Sum
The following items involve expenditures made by Consultant employees or professional consultants on
behalf of the Client and shall be paid for as described in this Agreement.
Expense of overtime work requiring higher than regular rates, if authorized in advance by the Client.
Other special expenses required in connection with the Project.
The cost of special consultants or technical services as required. The cost of subconsultant services shall
include actual expenditure plus 10% markup for the cost of administration and insurance.
The Client shall pay Consultant monthly for expenses not included in the Lump Sum amount.
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