4.7. SR 02-01-2016Request for Action
To
Item Number
Mayor and City Council
4.7
Agenda Section
Meeting Date
lFebruary1,
Prepared by
Consent
2016
Steve Benoit, Recreation Manager
Item Description
Reviewed by
Agreement for Professional Services Adjustment
Michael Hecker, Parks and Recreation Director
Reviewed by
for Spohn Ranch Skateparks
Cal Portner, City Administrator
Action Requested
Adopt, by motion, modification of Agreement for Professional Services to hire Spohn Ranch Skateparks
to design the Orono Park skate park.
Background/Discussion
At the December 14, 2015, Council meeting, the Council approved the hiring of Spohn Ranch Skateparks
to provide design services for the Orono Park Skate Park. Upon further review of the Agreement for
Professional Services, Spohn Ranch requested two adjustments to the agreement regarding the ownership
of the design work. Spohn Ranch's liability insurance company requests that the agreement language
provides the city with full use of the documents for their project, but ownership remain with Spohn
Ranch.
Peter Beck has reviewed and is supportive of the requested change.
Financial Impact
This will be funded from the Park Improvement Fund in which $35,000 has been budgeted.
Attachments
■ Agreement of Professional Services
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City of
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13065 Orono Parkway
Elk River, MN 55330
STANDARD AGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT ("Agreement") is made this8th day of January, 2016, between the City of Elk River,
Minnesota ("City"), whose business address is 13065 Orono Parkway, Elk River, MN 55330 and Spohn Ranch
Skate Parks ("Consultant") whose business address is 6824 S. Centinela Ave. Los Angeles, CA 90230.
PRELIMINARY STATEMENT
The City has adopted a policy regarding the selection and hiring of consultants to provide a variety of
professional services for City projects. That policy requires that persons, firms, or corporations providing such
services enter into written agreements with the City. The purpose of this agreement is to set forth the terms and
conditions for the professional services Consultant will provide in connection with Design of the Orono Park
skate park, herein referred to as the "Work".
The City and Consultant agree as follows:
1. Work. The Consultant agrees to provide the professional services described in Exhibit "A" attached hereto
(the "Work").
2. Time for Performance of Services. The Consultant shall perform the services described in Exhibit A
according to the schedule attached as Exhibit B, hereto.
3. Compensation for Services. City agrees to pay the Consultant $ 23,500 for the Work. Any changes in the
scope of the Work which may result in additional compensation due to the Consultant shall require prior
written approval by an authorized representative of the City or by the City Council. The City will not pay
additional compensation for services that do not have prior written authorization.
4. The City agrees to provide the Consultant with the information required to complete the Work.
5. Method of Payment. The Consultant shall submit itemized bills for professional services performed under
this Agreement on a monthly basis. Bills submitted shall be paid in the same manner as other claims made
to the City.
6. Project Manager and Staffing. The Consultant has designated the individuals identified in Exhibit A as
the Project Manager to serve on the Project. The Project Manager shall be assisted by other staff members
as necessary to facilitate the completion of the Project in accordance with the terms established herein.
Consultant may not remove or replace the Project Manager without the approval of the City.
7. Standard of Care. Standard of Care. Consultant shall exercise the same degree of care, skill and diligence
in the performance of the Work as is ordinarily exercised by members of the profession under similar
circumstances in Minnesota. Consultant shall be liable to the fullest extent permitted under applicable law,
without limitation, for any injuries, loss, or damages proximately caused by Consultant's breach of this
standard of care. Consultant shall put forth reasonable efforts to complete its duties in a timely manner.
Consultant shall not be responsible for delays caused by factors beyond its control or that could not be
reasonably foreseen at the time of execution of this Agreement. Consultant shall be responsible for costs or
damages arising from unreasonable delays in the completion of the Work.
8. Audit Disclosure. The Consultant shall allow the City or its duly authorized agents reasonable access to
such of the Consultant's books and records as are pertinent to the work performed under this Agreement.
Any reports, information, data, etc. given to, or prepared or assembled by, the Consultant under this
Agreement which the City requests to be kept confidential shall not be made available to any individual or
organization without the City's prior written approval. City shall have a perpetual license to retain and use
all final deliverables generated pursuant to this Agreement for the specific purpose of the project and no
other. Spohn retains ownership of all documents generated, in whole or in part, by Spohn, its agents, and
employees.
9. Term. The term of the Agreement shall be from January 8. 2016 through May 16, 2016 at which time final
site plans, specifications, construction documents, and construction cost estimates for the Orono Park skate
park must be received by the City. This Agreement may be extended upon the written mutual consent of
the parties for such additional period as they deem appropriate, and upon the terms and conditions as herein
stated.
10. Termination. This Agreement may be terminated by the Consultant effective upon sixty (60) days' written
notice delivered to the City at the address written above. The City may terminate this Agreement effective
immediately, upon written notice to the consultant. Upon termination under this provision, the Consultant
shall be paid for services rendered and reimbursable expenses until the effective date of termination.
If, however the City terminates this Agreement because the Consultant has failed to perform in accordance
with this Agreement, no further payment shall be made to the Consultant, and the City may retain another
consultant to undertake or complete the Work.
11. Independent Consultant. At all times and for all purposes herein, the Consultant is an independent
contractor and not an employee of the City. No statement herein shall be construed so as to find the
Consultant an employee of the City.
12. Non -Discrimination. During the performance of this Agreement, the Consultant shall not discriminate
against any employee or applicant for employment because of race, color, creed, religion, national origin,
sex, marital status, status with regard to public assistance, disability, or age. The Consultant shall post in
places available to employees and applicants for employment, notices setting forth the provision of this non-
discrimination clause and stating that all qualified applicants will receive consideration for employment. The
Consultant shall incorporate the foregoing requirements of this paragraph in all of its subcontracts for
program work, and will require all of its subcontractors for such work to incorporate such requirements in
all subcontracts for program work.
13. Assignment. Neither party shall assign this Agreement, not any interest arising herein, without the prior
written consent of the other party.
14. Services Not Provided For. No claim for services furnished by the Consultant not specifically provided
for in Exhibit A shall be honored by the City.
15. Severability. The provisions of this Agreement are severable. If any portion hereof is, for any reason, held
by a court of competent jurisdiction to be contrary to law, such decision shall not affect the remaining
provisions of this Agreement.
16. 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.
17. Compliance with Laws and Regulations. In providing services hereunder, the Consultant shall abide by
all statutes, ordinances, rules and regulations pertaining to the provisions of services to be provided. The
Consultant and City, together with their respective agents and employees, agree to abide by the provisions
of the Minnesota Data Practices Act, Minnesota Statutes Section 13, as amended, and Minnesota Rules
promulgated pursuant to Chapter 13. Any violation of statutes, ordinances, rules and regulations pertaining
to the services to be provided shall constitute a material breach of this Agreement and entide the City to
immediately terminate this Agreement
18. Waiver. Any waiver by either party of a breach of any provision of this Agreement shall not affect, in any
respect, the validity of the remainder of this Agreement.
19. Indemnification. Consultant agrees to defend, indemnify and hold harmless the City and its officials,
employees and agents from any liability, claims, damages, costs, losses judgments, or expenses, including
reasonable attorney's fees, resulting directly or indirectly from a negligent act or omission (including without
limitation professional errors or omissions) of the Consultant, its agents, employees, or subcontractors in
the performance of the services provided by this Agreement and against all losses by reason of the failure of
said Consultant fully to perform, in any respect, all obligations under this Agreement.
20. Insurance.
A. General Liability. Prior to starting the Work, Consultant shall procure, maintain and pay for such
insurance as will protect against claims for bodily injury or death, or for damage to property,
including loss of use, which may arise out of operations by Consultant or by any subcontractor or by
anyone employed by any of them or by anyone for whose acts any of them may be liable. Such
insurance shall include, but not be limited to, minimum coverages and limits of liability specified in
this Paragraph, or required by law. The policy(ies) shall name the City as an additional insured for
the services provided under this Agreement and shall provide that the Consultant's coverage shall be
primary and noncontributory in the event of a loss.
B. Consultant shall procure and maintain the following minimum insurance coverages and limits of
liability on this Project:
Workers Compensation Statutory Limits
Employer's Liability $500,000 each accident
$500,000 disease policy limit
$500,000 disease each employee
Comprehensive General
Liability $1,500,000 property damage and
bodily injury per occurrence
$2,000,000 general aggregate
$2,000,000 Products — Complete
Operations Aggregate
$100,000 fire legal liability each
occurrence
$5,000 medical expense
Comprehensive Automobile
Liability $1,000,000 combined single limit each
accident (shall include coverage for all
owned, hired and non -owned vehicles.
Umbrella or Excess Liability $1,000,000
C. The Comprehensive General/Commercial General Liability policy(ies) shall be equivalent in
coverage to ISO form CG 0001, and shall include the following:
a. Premises and Operations coverage with no explosions, collapse, or underground damage
exclusion (XCUl).
b. Products and Completed Operations coverage. Consultant agrees to maintain this coverage
for a minimum of two (2) years following completion of its work. Said coverage shall apply
to bodily injury and property damage arising out of the products -completed operations
hazard.
c. Personal injury with Employment Exclusion (if any) deleted.
d. Broad Form CG 0001 0196 Contractual Liability coverage, or its equivalent.
e. Broad Form Property Damage coverage, including completed operations, or its equivalent.
Additional Insured Endorsement(s), naming the "City of Elk River" as an Additional
Insured, on ISO form CG 20 10 07 04 or such other endorsement form as is approved by
the City.
g. If the Work to be performed is on an attached community, there shall be no exclusion for
attached or condominium projects.
h. "Stopgap" coverage for work in those states where Workers' Compensation Insurance is
provided through a state fund if Employer's liability coverage is not available.
i. Severability of Insureds provision.
D. Professional Liability Insurance. The Consultant agrees to provide to the City a certificate
evidencing that they have in effect, with an insurance company in good standing and authorized to
do business in Minnesota, a professional liability insurance policy. Said policy shall insure payment
of damage for legal liability arising out of the performance of professional services for the City. Said
policy shall provide an aggregate limit of $2,000,000. Said policy shall not name the City as an
insured.
E. Consultant shall maintain in effect all insurance coverages required under this Agreement at
Consultant's sole expense and with insurance companies licensed to do business in the state in
Minnesota and having a current A.M. Best rating of no less than A-, unless specifically accepted by
City in writing. In addition to the requirements stated above, the following applies to the insurance
policies required under this Paragraph:
a. All policies, except the Professional Liability Insurance policy, shall be written on an
"occurrence" form ("claims made" and "modified occurrence" forms are not acceptable);
b. All policies, except the Professional Liability Insurance policy, shall be applied on a "per
project" basis;
c. All policies, except the Professional Liability Insurance and Worker's Compensation Policies,
shall contain a waiver of subrogation naming "the City of Elk River';
d. All policies, except the Professional Liability Insurance and Worker's Compensation Policies,
shall name "the City of Elk River" as an additional insured;
e. All policies, except the Professional Liability Insurance and Worker's Compensation Policies,
shall insure the defense and indemnity obligations assumed by Consultant under this
Agreement; and
f. All policies shall contain a provision that coverages afforded thereunder shall not be
canceled or non -renewed, not shall coverage limits be reduced by endorsement, without
thirty (30) days prior written notice to the City.
A copy of the Consultant's Certificate of Insurance which evidences the compliance with
this Paragraph 20, must be filed with City prior to the start of Consultant's Work. Upon
request, a copy of the Consultant's insurance declaration page, Rider and/or Endorsement, as
applicable shall be provided. Such documents evidencing Insurance shall be in a form acceptable to
City and shall provide satisfactory evidence that Consultant has complied with all insurance
requirements. Renewal certificates shall be provided to City prior to the expiration date of any of
the required policies. City will not be obligated, however, to review such Certificate of Insurance,
declaration page, Rider, Endorsement or certificates or other evidence of insurance, or to advise
Consultant of any deficiencies in such documents and receipt thereof shall not relieve Consultant
from, nor be deemed a waiver of, City's right to enforce the terms of Consultant's obligations
hereunder. City reserves the right to examine any policy provided for under this paragraph.
F. Effect of Consultant's Failure to Provide Insurance. If Consultant fails to provide the specified
insurance, then Consultant will defend, indemnify and hold harmless the City, the City's officials,
agents and employees from any loss, claim, liability and expense (including reasonable attorney's fees
and expenses of litigation) to the extent necessary to afford the same protection as would have been
provided by the specified insurance. Except to the extent prohibited by law, this indemnity applies
regardless of any strict liability or negligence attributable to the City (including sole negligence) and
regardless of the extent to which the underlying occurrence (ie., the event giving rise to a claim
which would have been covered by the specified insurance) is attributable to the negligent or
otherwise wrongful act or omission (including breach of contract) of Consultant, its subcontractors,
agents, employees, or delegates. Consultant agrees that this indemnity shall be construed and
applied in favor of indemnification. Consultant also agrees that if applicable law limits or precludes
any aspect of this indemnity, then the indemnity will be considered limited only to the extent
necessary to comply with that applicable law. The stated indemnity continues until all applicable
statutes of limitation have run.
If a claim arises within the scope of the stated indemnity, the City may require Consultant to:
a. Furnish and pay for a surety bond, satisfactory to the City, guaranteeing performance of the
indemnity obligation; or
b. Furnish a written acceptance of tender of defense and indemnity from Consultant's
insurance company.
Consultant will take the action required by the City within fifteen (15) days of receiving notice from
the City.
21. Records Access. The Consultant shall provide the City access to any books, documents, papers, and
records which are directly pertinent to the specific contract, for the purpose of making audit, examination,
excerpts, and transcriptions, for three years after final payments and all other pending matters related to this
contract are closed.
22. Ownership of Documents. City shall have a perpetual license to retain and use all final deliverables
generated pursuant to this Agreement for the specific purpose of the project and no other. Spohn retains
ownership of all documents generated, in whole or in part, by Spohn, its agents, and employees. The City
may use the Information for its purposes and the Contractor also may use the Information for its purposes.
Reuse of the Information for the purposes of the project contemplated by this Agreement ("Project") does
not relieve any liability on the part of the Contractor, but any reuse of the Information by the City or the
Contractor beyond the scope of the Project is without liability to the other, and the party reusing the
Information agrees to defend and indemnify the other from any claims or liability resulting therefrom.
23. Subcontractor. The Consultant shall not enter into subcontracts for services provided under this
Agreement except as noted in Exhibit A, without the express written consent of the City. The Consultant
shall pay any subcontractor involved in the performance of this Agreement within the ten (10) days of the
Consultant's receipt of payment by the City for undisputed services provided by the subcontractor. If the
Consultant fails within that time to pay the subcontractor any undisputed amount for which the Consultant
has received payment by the City, the Consultant shall pay interest to the subcontractor on the unpaid
amount at the rate of 1.5 percent per month or any part of a month. The minimum monthly interest
penalty payment for an unpaid balance of $100 or more is $10. For an unpaid balance of less than $100, the
Consultant shall pay the actual interest penalty due to the subcontractor. A subcontractor who prevails in a
civil action to collect interest penalties from the Consultant shall be awarded its costs and disbursements,
including attorney's fees, incurred in bringing the action. In addition, no subcontractor can file a lien against
the City.
24. Dispute Resolution/Mediation. Each dispute, claim or controversy arising from or related to this
Agreement or the relationships which result from this Agreement shall be subject to mediation as a
condition precedent to initiating arbitration or legal or equitable actions by either party. Unless the parties
agree otherwise, the mediation shall be in accordance with the Commercial Mediation Procedures of the
American Arbitration Association then currently in effect. A request for mediation shall be filed in writing
with the American Arbitration Association and the other party. No arbitration or legal or equitable action
may be instituted for a period of ninety (90) days from the filing of the request for mediation unless a longer
period of time is provided by agreement of the parties. Cost of mediation shall be shared equally between
the parties. Mediation shall be held in the City of Elk River unless another location is mutually agreed upon
by the parties. The parties shall memorialize any agreement resulting from the mediation in a Mediated
Settlement Agreement, which Agreement shall be enforceable as a settlement in any court having
jurisdiction thereof.
25. Conflicts. No salaried officer or employee of the City and no member of the City Council of the City shall
have a financial interest, direct or indirect, in this Agreement. The violation of this provision renders the
Agreement void. Any federal regulations and applicable state statutes shall not be violated.
26. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be
considered an original.
27. Entire Agreement. This Agreement constitutes the entire agreement of the parties and supersedes all prior
communications, understandings and agreements relating to the subject matter hereof, whether oral or
written.
28. Governing Law. This Agreement shall be controlled by laws of the State of Minnesota. Executed as of
the day and year first written above.
City of Elk River
Mayor
City Clerk
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