Professional Services Agreement for Construction Services with SEH for Lake Ann Park Preserve Boardwalk 02-12-20241
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PROFESSIONAL SERVICES AGREEMENT
AGREEMENT made this 12th day of February 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 an archeological investigation, construction
staking, construction administration and observation, and materials testing for the boardwalk, trail
and parking lot projects that are being bid as two separate construction contracts.
2. SCOPE OF SERVICES. The City retains SEH to provide professional services
described in the Scope of Services attached hereto as Exhibit A and Duties, Responsibilities, and
Limitations of Authority of the Resident Project Representative (RPR) attached hereto as Exhibit B.
3. COMPENSATION. SEH shall be paid by the City for the services described in
Exhibit A, a not to exceed fee of Three Hundred Thousand, Seven Hundred Dollars ($304,700),
inclusive of expenses. Services performed directly by SEH shall be paid at an hourly rate in
accordance with Exhibit C, subject to the not to exceed fee. SEH 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. COMPLETION DATE. SEH must complete the services specified in the
Contract Documents on or before June 30, 2025.
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 SEH 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 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. The City shall not be responsible for discovering deficiencies in the
accuracy of SEH’s services.
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9. INDEMNIFICATION. SEH 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, to the extent caused by SEH’s negligence. SEH 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 an
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.
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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 collectable insurance available
to the City with respect to any claim arising out of SEH’s performance under this Agreement.
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 Statutes § 471.425. SEH must pay subcontractors for all undisputed services provided
by subcontractors within ten (10) days of SEH’s receipt of payment from City. SEH 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).
13. ASSIGNMENT. Neither party shall assign this Agreement, or 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
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exclusive venue shall be in the District Court of the State of Minnesota for Carver County
Minnesota.
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 PROCESSES. SEH shall
indemnify and hold harmless the City from any and all claims for infringement by reason of the
use of any such 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.
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 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 evid ence of
delivery or by hand delivery by reputable independent courier providing written evidence of
delivery, addressed as follows:
Notice to City: Park & Recreation Director
PO Box 147
Chanhassen, MN 55317
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Notice to SEH: ________________________
________________________
________________________
22. NONDISCRIMINATION. In the hiring of employees to perform work under this
Agreement, SEH shall not discriminate against any person by reason of any characteristic or
classification protected by the 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 the 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 SEH 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 SEH’s work without written consent or adaptation by SEH for the
specific purpose intended will be at the City’s sole risk and without liability or legal expos ure to
SEH, and the City shall release SEH from all claims arising from such use.
25. CONSEQUENTIAL DAMAGES. Neither Party shall be liable for 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.
20. DISPUTE RESOLUTION. Any dispute between the City and SEH arising out of
or relating to this Agreement or the work (except for SEH’s unpaid invoices) shall be submitted to
mediation as a precondition to litigation unless the parties mutually agree otherwise.
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Toby Muse
3535 Vadnais Center Drive
Vadnais Heights, MN 55110
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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 OF WORK
Our scope of work includes coordinating the archeological investigation services by a
subcontract with the 106 Group to satisfy the Minnesota State Historic Preservation Office
(SHPO), as well as, full construction administration, staking and construction observation
services for both the Boardwalk Bid Package and the Trail and Parking Lot Bid Package. SEH
will also subcontract with HKGi again for this construction phase and with a materials testing
firm, American Engineering Testing, for both bid packages. The following tasks are necessary
to complete this scope of work:
1. Project Management
This task consists of general project management and coordination duties, such as
managing internal and external teams, schedule budget management, pre-construction
meetings, utility coordination meetings (if needed), and general project correspondence
and coordination. Since there are two bid packages and likely two different contractors
on site, SEH will coordinate between the two contracts to ensure both contractors can
complete their work efficiently. SEH will provide content for City website, social media,
and mailings for the project. SEH will attend all meetings and HKGi will attend
meetings, as needed.
2. Archeological Investigation
SEH will partner with the 106 Group to complete the required investigation and
documentation to satisfy SHPO regarding potential archaeological findings in the area of
the trail near Lake Ann. The 106 Group will research and prepare for the field work,
including review of project materials and scoping, review of SHPO data, OSA portal,
MnModel, historical maps and aerial photographs, another data to assess archaeological
potential. For the Phase I archaeological fieldwork, 106 Group will obtain the required
license to complete a visual assessment of the entire project area. Fieldwork will include
delineation of the site boundary for site 21CR0042. It is assumed that up to 8 shovel tests
will be required to delineate the site boundary and it is assumed that up to 25 artifacts
will be identified. Because of the moderate to high potential of the project area, it is
assumed that on newly identified archaeological site, apart from 21CR0042, and up to 25
artifacts will be identified and up to 8 radial shovel tests will be required. 106 Group will
provide a report with one site form update prepared for 21CR0042 and one site form
prepared for the newly identified site, with up to 50 artifacts processed and curated. A
draft and final Phase I technical report will be provided in electronic format.
Phase II evaluation may be necessary if one or more potentially National Register of
Historic Places-eligible archaeological sites were identified during Phase I survey. The
level of effort for Phase II evaluation would be dependent on how many potentially
eligible archaeological sites are identified, as well as the size and characteristics of the
sites, which would not be known until after the Phase I survey is completed. Phase II
investigation of a typical precontact site might require agency coordination, close interval
shovel testing, excavation of one or two formal units, artifact analysis, and reporting.
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3. Construction Staking
SEH will provide staking services which include setting up stakeout files, setting project
control, staking for the boardwalks, trail centerline and offsets, parking lot, and
stormwater BMPs.
4. Construction Administration and Observation
SEH will partner with HKGi to ensure all components of both bid packages are
constructed per the contract. This task includes four primary subtasks separated for both
bid packages:
a. Preconstruction activities: SEH and HKGi will review shop drawings and
contractor submittals. SEH will finalize any outstanding permits and prepare an
application for payment form.
b. Construction administration: We will finalize any contract documents, provide
general engineering support throughout construction, prepare applications for
payment and change orders, and attend on-site construction meetings (including
preparation of meeting agenda and minutes) for both bid packages.
c. Grant administration: HKGi will provide services to provide documentation
required for the DNR Boardwalk Grant and assist the City through the DNR’s
grant agreement process. SEH will provide payment requests to the DNR upon
completion of Boardwalk A.
d. Construction observation: SEH and HKGi will provide part-time construction
observation throughout construction of both bid packages, including SEH
checking in each day with both contractors to schedule site visits during key
construction milestones. SEH will coordinate observation with HKGi for their
review of the construction staking. It is assumed that SEH field staff may spend
up to 20 hours a week during major construction activities.
e. Project closeout: SEH will provide project closeout services, including site
closeout walkthrough, development and coordination of punch list, as-built survey
and drawings, and complete the final application for payment and project closeout
letter.
5. Materials Testing
SEH will partner with AET to coordinate materials testing for both bid packages. SEH
will provide required inspections and infiltration testing on the stormwater BMPs.
Assumptions: Assumes two pre-construction meetings, one for each bid package, will be held at
Chanhassen City Hall. For project communications, assumes the City will update websites and social media with
content provided by SEH. The cost includes 2 postcard mailings to neighborhoods on
either side of the project, up to 250 properties per mailing. Assumes up to 15 construction meetings between the two bid packages will be held on-
site, and includes preparation of agenda and minutes. Part-time construction observation services for both bid packages. The number of hours
are estimated based on previous similar projects and assume an estimated construction
timeframe. The actual effort required by SEH field staff will be dictated by the
contractors’ schedule during construction. Should changes to the trail alignment be required per the archeological investigation, a
scope change and fee amendment will be needed to update the plans and revise any
required permits.
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EXHIBIT B
DUTIES, RESPONSIBILITIES, AND LIMITATIONS
OF AUTHORITY OF THE RESIDENT PROJECT REPRESENTATIVE (RPR)
Through more extensive on site observations of the construction work in progress and field
checks of materials and equipment by the Resident Project Representative (RPR), SEH shall
endeavor to provide further protection for the City against defects and deficiencies in the work of
contractor (Work); but, the furnishing of such services will not make SEH responsible for or give
SEH control over construction means, methods, techniques, sequences or procedures or for
safety precautions or programs, or responsibility for contractor’s failure to perform the Work in
accordance with the Contract Documents. Contract Documents are the documents that govern or
are pertinent to contractor’s Work including but not limited to the agreement between the City
and contractor, the contractor’s bid, the bonds, specs, drawings, field orders, addenda,
clarifications, interpretations, approved shop drawings and reports collectively called the
Contract Documents. The duties and responsibilities of the RPR are further defined as follows:
A. General
RPR is an agent of SEH at the site, will act as directed by and under the supervision of
SEH, and will confer with SEH regarding RPR’s actions. RPR’s dealings in matters
pertaining to the on site work shall in general be with SEH and contractor keeping the City
advised as necessary. RPR’s dealings with subcontractors shall only be through or with the
full knowledge and approval of contractor. RPR shall generally communicate with the City
with the knowledge of and under the direction of SEH.
B. Duties and Responsibilities of RPR
1. Schedules: Review the progress schedule, schedule of shop drawing submittals and
schedule of values prepared by Contractor and consult with SEH concerning
acceptability.
2. Conferences and Meetings: Attend meetings with contractor, such as preconstruction
conferences, progress meetings, job conferences and other project-related meetings,
and prepare and circulate copies of minutes thereof.
3. Liaison:
(a) Serve as SEH’s liaison with contractor, working principally through
contractor’s superintendent and assist in understanding the intent of the Contract
Documents; and assist SEH in serving as City’s liaison with contractor when
contractor’s operations affect City’s on-site operations.
(b) Assist in obtaining from the City additional information, when required for
proper execution of the Work.
4. Shop Drawings and Samples*:
(a) Record date of receipt of shop drawings and samples.
(b) Receive samples furnished at the site by contractor, and notify SEH of
availability of samples.
(c) Advise SEH and contractor of the commencement of any Work requiring a shop
drawing or sample if the submittal has not been approved by SEH.
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5. Review of Work, Observations and Tests:
(a) Conduct on-site observations of the Work in progress to assist SEH in
determining if the Work is in general proceeding in accordance with the
Contract Documents.
(b) Report to SEH whenever RPR believes that any Work is unsatisfactory, faulty
or defective or does not conform to the Contract Documents, or has been
damaged, or does not meet the requirements of any inspection, test or approval
required to be made; and advise SEH of Work that RPR believes should be
corrected or rejected or should be uncovered for observation, or requires special
testing, inspection or approval.
(c) Determine if tests, equipment and systems start-ups and operating and
maintenance training are conducted in the presence of appropriate personnel,
and that Contractor maintains adequate records thereof; and observe, record and
report to SEH appropriate details relative to the test procedures and start-ups.
(d) Accompany visiting inspectors representing public or other agencies having
jurisdiction over the Project, record the results of these inspections and report to
SEH.
6. Interpretation of Contract Documents: Report to SEH when clarification and
interpretations of the Contract Documents are requested by contractor and transmit to
contractor clarifications and interpretations as issued by SEH.
7. Modifications: Consider and evaluate contractor’s suggestions for modifications in
drawings or specifications and report with RPR’s recommendations to SEH. Transmit
to contractor decisions as issued by SEH.
8. Records:
(a) Maintain at the job site orderly files for correspondence, reports of job
conferences, shop drawings and samples, reproductions of original Contract
Documents including all addenda, change orders, field orders, additional
drawings issued subsequent to the execution of the construction contract, SEH’s
clarifications and interpretations of the Contract Documents, progress reports,
and other related documents.
(b) Keep a diary or log book, recording contractor hours on the job site, weather
conditions, data relative to questions of change orders, or changed conditions,
list of job site visitors, daily activities, decisions, observations in general, and
specific observations in more detail as in the case of observing test procedures;
and send copies to SEH.
(c) Record names, addresses and telephone numbers of all contractors,
subcontractors and major suppliers of materials and equipment.
9. Reports:
(a) Furnish SEH periodic reports as required of progress of the Work and of
contractor’s compliance with the progress schedule and schedule of shop
drawing and sample submittals.
(b) Consult with SEH in advance of scheduled major tests, inspections or start of
important phases of the Work.
(c) Draft proposed change orders and Work, obtaining backup material from
contractor and recommend to SEH change orders, and field orders.
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(d) Report immediately to SEH and the City upon the occurrence of any accident.
10. Payment Requests: Review applications for payment with contractor for compliance
with the established procedure for their submission and forward with
recommendations to SEH, noting particularly the relationship of the payment
requested to the schedule of values, Work completed and materials and equipment
delivered at the site but not incorporated in the Work.
11. Certificates, Maintenance and Operation Manuals: During the course of the Work,
verify that certificates, maintenance and operation manuals and other data required to
be assembled and furnished by contractor are applicable to the items actually installed
and in accordance with the Contract Documents, and have this material delivered to
SEH for review and forwarding to the City prior to final payment for the Work.
12. Completion:
(a) Before SEH issues a certificate of substantial completion, submit to contractor a
list of observed items requiring completion or correction.
(b) Conduct final inspection in the company of SEH, the City, and contractor and
prepare a final list of items to be completed or corrected.
(c) Observe that all items on final list have been completed or corrected and make
recommendations to SEH concerning acceptance.
C. Limitations of Authority
Resident Project Representative:
1. Shall not authorize any deviation from the Contract Documents or substitution of
materials or equipment, unless authorized by the City.
2. Shall not exceed limitations of SEH’s authority as set forth in the Agreement for
Professional Services.
3. Shall not undertake any of the responsibilities of contractor, subcontractors or
contractor’s superintendent.
4. Shall not advise on, issue directions regarding or assume control over safety
precautions and programs in connection with the Work.
5. Shall not accept shop drawing or sample submittals from anyone other than
contractor.
6. Shall not authorize the City to occupy the Project in whole or in part.
7. Shall not participate in specialized field or laboratory tests or inspections conducted
by others except as specifically authorized by SEH.
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EXHIBIT C
PAYMENTS FOR SERVICES AND EXPENSES
The Agreement for Professional Services is amended and supplemented to include the following
agreement of the parties:
A. Hourly Basis Option
The City and SEH select the hourly basis for payment for services provided by SEH. SEH
shall be compensated monthly. Monthly charges for services shall be based on SEH’s
current billing rates for applicable employees plus charges for expenses and equipment.
SEH will provide an estimate of the costs for services in this Agreement. It is agreed that
after 90% of the estimated compensation has been earned and if it appears that completion
of the services cannot be accomplished within the remaining 10% of the estimated
compensation, SEH will notify the City and confer with representatives of the City to
determine the basis for completing the work.
Compensation to SEH based on the rates is conditioned on completion of the work within
the effective period of the rates. Should the time required to complete the work be extended
beyond this period, the rates shall be appropriately adjusted.
B. Expenses
The following items involve expenditures made by SEH employees or professional
consultants on behalf of the City. Their costs are not included in the hourly charges made
for services but instead are reimbursable expenses required in addition to hourly charges
for services and shall be paid for as described in this Agreement:
1. Transportation and travel expenses.
2. Long distance services, dedicated data and communication services, teleconferences,
Project Web sites, and extranets.
3. Lodging and meal expense connected with the Project.
4. Fees paid, in the name of the City, for securing approval of authorities having
jurisdiction over the Project.
5. Plots, Reports, plan and specification reproduction expenses.
6. Postage, handling and delivery.
7. Expense of overtime work requiring higher than regular rates, if authorized in
advance by the City.
8. Renderings, models, mock-ups, professional photography, and presentation materials
requested by the City.
9. All taxes levied on professional services and on reimbursable expenses.
10. Other special expenses required in connection with the Project.
11. 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 City shall pay SEH monthly for expenses.
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C. Equipment Utilization
The utilization of specialized equipment, including automation equipment, is recognized as
benefiting the City. The City, therefore, agrees to pay the cost for the use of such
specialized equipment on the project. SEH invoices to the City will contain detailed
information regarding the use of specialized equipment on the project and charges will be
based on the standard rates for the equipment published by SEH.
The City shall pay SEH monthly for equipment utilization.
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