HomeMy WebLinkAbout2023-12-02-R RESOLUTION # &o 9
A RESOLUTION TO CONTRACT WITH KIMLEY-HORN FOR THE
DEVELOPMENT OF A SAFE STREETS AND ROADS FOR ALL (SS4A) SAFETY
ACTION PLAN
WHEREAS,the City of Batesville desires to enter into a contract for the development of a Safe
Streets for All Safety Action Plan that will consider safety for all road users in the City of Batesville;
WHEREAS, Kimley-Horn was selected through a Statement of Qualifications process and were
found to be the most qualified firm to provide these design services;
WHEREAS, the total amount of the contract will be$255,000.00,more or less, and will be paid
from monies collected from the Federal Highway Administration SS4A Grant Program;
WHEREAS, the Federal Highway Administration SS4A Grant Program is an 80/20 Matching
Grant Program requiring the City of Batesville to be responsible for 20% of the contract amount;
NOW,THEREFORE BE IT RESOLVED, BY THE CITY COUNCIL OF THE CITY OF
BATESVILLE,ARKANSAS
SECTION 1:That the City of Batesville,Arkansas will enter into a contract for the development of
a Safe Streets for All Safety Action Plan with Kimley-Horn.
SECTION 2:The total amount for the contract will be$255,000.00,more or less, and will be paid
from monies collected from the Federal Highway Administration SS4A Grant Program.
SECTION 3:The Federal Highway Administration SS4A Grant Program is an 80/20 Matching
Grant Program and the City of Batesville will pay 20% of the contract from funds allocated in the
2024 City of Batesville Operating Budget.
SECTION 3: The Mayor,Rick Elumbaugh and City Clerk,Denise Johnston are hereby authorized
by the City Council for the City of Batesville to execute all documents necessary to effectuate the
agreement.
PASSED AND APPROVED this k�'Iay of December, 2023.
2a AL
Rick Elumbaugh, Mayor
ATTEST:
Denise Johnston, City erk
Kimley)))Horn
December 6, 2023
Mr. Jeff Owens
City of Batesville
1420 South 20th Street
Batesville, AR 72501
Re: Letter Agreement for Professional Services for
Safe Streets for All (SS4A) Safety Action Plan, Batesville, AR
Dear Mr. Owens:
Kimley-Horn and Associates, Inc. ("Kimley-Horn" or "Consultant") is pleased to submit this Letter
Agreement (the"Agreement') to the City of Batesville ("Client") for providing professional engineering
services.
Project Understanding
Kimley-Horn will develop a Safe Streets and Roads for All (SS4A) Safety Action Plan that will
consider safety for all road users in the City of Batesville. The goal of the Safety Action Plan is to
improve roadway safety by significantly reducing or eliminating roadway fatalities and serious injuries
through implementation focused on all users, including pedestrians, bicyclists, motorists, personal
conveyance and micro-mobility users, and commercial vehicle operators. The Safety Action Plan
developed by Kimley-Horn will meet the requirements established by the US Department of
Transportation (USDOT)for SS4A Safety Action Plans and will support future SS4A Implementation
Grant applications by the City.
Scope of Services
Kimley-Horn will provide the services specifically set forth below.
TASK 1 —PROJECT MANAGEMENT
Kimley-Horn will conduct ongoing project management and meetings with the City of Batesville
throughout the project duration as described below.
Task 1.1 —Project Kick-off
Kimley-Horn will schedule a project kick-off meeting that will include the City staff and additional
representatives as designated by the City. The purpose of this meeting will be to discuss the project
schedule in detail and identify potential dates for stakeholder engagement activities and project
coordination meetings. The meeting will also be used to further define specifics of the stakeholder
outreach activities including identification of key contacts at each participating agency, identification of
key community leaders for equity outreach, and identification of locations where walk audits will be
conducted. Kimley-Horn will provide a revised project schedule based on the notice to proceed date
that includes periods for major deliverable review by the City.
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Kimley-Horn will prepare an agenda for the project kick-off meeting and submit notes of the meeting
and a revised project schedule following the meeting.
Task 1.2—Invoicing, Progress Reports, and Document Control
Kimley-Horn will provide the City with monthly progress reports and monthly invoices. Progress
reports will describe activities during the reporting period, deliverables completed during the reporting
period, and overall project status. Kimley-Horn will prepare all requests for payment, which will be
submitted monthly with each progress report.
In addition, Kimley-Horn will maintain an electronic document control and filing system that will govern
the organization and distribution of all program-related correspondence, reports, and other document
deliverables. Copies of all deliverables will be provided to the City in their original file format or PDF
format, per direction of the City. Kimley-Horn will prepare a file transfer at the completion of the
project to provide the City with the final electronic version of all deliverables produced in the project.
Task 1.3—Monthly Project Team Coordination Meetings
Kimley-Horn will conduct monthly project team coordination meetings with the City. The purpose of
these meetings will be to discuss project progress, review submitted deliverables, and discuss
upcoming project meetings, workshops, and deliverables. Kimley-Horn will submit a brief agenda to
the City prior to each coordination meeting. For budgeting purposes, it is assumed that three
meetings will be conducted in-person and nine will be held virtually.
Task 1.4 Grant Administration Support Services
Kimley-Horn will provide grant administration support services to the City. It is our understanding that
the City will be responsible for the actual administration of the grant and documentation ensuring
compliance with all grant requirements. However, Kimley-Horn will provide guidance and support to
the City staff, as requested, throughout the duration of the project in relation to compliance with grant
requirements.
Task 1 Deliverables:
• Project invoices and progress report(submitted monthly)
• Project kick-off meeting agenda and notes
• Detailed project schedule
• Agendas for monthly coordination meetings
TASK 2—DATA COLLECTION AND SAFETY ANALYSIS
Kimley-Horn will analyze existing safety data for the City of Batesville and identify key areas of
roadway safety concerns. The safety analysis performed in Task 2 will be combined with the
engagement and equity activities in Task 3 to form the basis for recommendations developed in Task
4.
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Task 2.1 —Safety Data Collection and Analysis Plan
Kimley-Horn will use existing crash and volume data from ARDOT's Arkansas Crash Analytics Tool
(ACAT), National Highway Traffic Safety Administration's (NHTSA) Fatality Analysis Reporting
System (FARS), the Strategic Highway Safety Plan, and other data provided by the City. The most
recent five years of data will be used for the analysis. Kimley-Horn will consider emerging data
sources that could be used and document potential safety data in a Safety Data Collection and
Analysis Plan. Kimley-Horn will provide this plan to the City for review and comment. Kimley-Horn
will incorporate comments from the City and will develop a final Safety Data Collection and Analysis
Plan.
Task 2.2—Collect and Analyze Traffic Safety and Volume Data
Kimley-Horn will analyze existing data and trends on all public roadways to identify specific emphasis
areas, such as active transportation, impaired driving, intersection, or lane departures, that represent
a large proportion of fatalities and serious injuries.
Kimley-Horn will develop a statistical network screening tool that uses the Highway Safety Manual
(HSM) crash prediction methods to identify a high-risk network with priority locations for additional
review. The HSM-based method identifies:
1. Locations with higher-than-expected crash frequencies, based on comparison with similar
facilities; and
2. Locations with the greatest potential for safety improvement(decreased crashes).
This method leads to a high-risk network which is reviewed for a variety of crash characteristics to
identify locations where specific crash types are overrepresented.
Task 2.3—Identify Safety Trends, Hot Spots, and High Injury Networks
Kimley-Horn will document existing conditions and historical trends and provide a baseline level of
crashes involving fatalities and serious injuries across the City of Batesville.
Kimley-Horn will use a data-driven approach using crash and volume data, if available, to determine
crash rates on corridors and at intersections. A high-injury network will be developed that includes
data related crash location, demographics, and crash factors. The high-injury network will look at
modes including vehicles, bicycles, and pedestrians. This data will be overlaid with underserved
community data to include equity as a factor in ranking corridors and intersections during later tasks.
The results of Task 2.2 and Task 2.3 will be summarized in a Safety Hot Spot and High-Injury
Network Technical Memorandum.
Task 2.4—Prioritize Safety Locations
Prioritization will be based on the data analysis as well as the public outreach and equity activities
identified in Task 3. A prioritized set of safety locations for further analysis will be developed once the
engagement and equity activities are substantially complete. Kimley-Horn will document the
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prioritization process that will allow decision makers to easily assess how different factors impact the
prioritized list of identified safety locations.
Kimley-Horn will present the prioritized safety locations to the City for review and comment. Kimley-
Horn will document input from the City and provide a revised version of the prioritize safety locations.
Task 2 Deliverables:
• Draft and Final Safety Data Collection and Analysis Plan
• Safety Hot Spot and High Injury Network Technical Memorandum
• Prioritized safety locations to the City
• Revised list of prioritized safety locations
TASK 3—ENGAGEMENT AND EQUITY
Kimley-Horn will conduct public engagement with the goal to educate, garner input to inform the
Safety Action Plan, and develop advocacy for best practices. An equity analysis will be conducted
with the goal of making the Safety Action Plan responsive to the needs and priorities of all
communities and promoting equitable outcomes across the City.The following public engagement
and equity activities will be conducted.
Task 3.1 —Public Engagement
Public engagement activities will be conducted to provide opportunities to all parts of the community
to engage and provide input for the project. Kimley-Horn will conduct the following public engagement
activities.
Online Interactive Mapping Tool—Kimley-Horn will develop a GIS-based online interactive mapping
tool for use during the public engagement process. Kimley-Horn will host the online tool and provide
external links to the public through the engagement efforts to collect location-specific input from the
public.
Online Survey—Kimley-Horn will develop an online survey with the assistance of the City. Kimley-
Horn will utilize tools to reach citizens on a digital platform accessible by home computers and smart
phones, as well as various forms of social media.
Public Engagement Meetings—Kimley-Horn will conduct up to six(6) public engagement meetings
for community members to inform the planning process and select preferred infrastructure
improvements to enhance safety. It is anticipated that the meetings will be distributed geographically
around the City and offer a variety of passive interactive exercises and issue-based stations. Kimley-
Horn will work with the City to identify locations and schedule dates for each of these during the
Project Kick-off Meeting. Kimley-Horn will provide meeting materials and the City will provide
locations for each meeting.
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Task 3.2—Community Walk Audits
Kimley-Horn will conduct up to four(4)walk audits within the City of Batesville. It is anticipated that
the walk audits will be conducted during the same trips to Batesville for the public engagement
meetings. The goal of the audits will be to highlight barriers and concerns of residents and to assess
existing conditions related to user safety, with a particular focus on active transportation. Kimley-Horn
will oversee the coordination of the audit while managing audit logistics. The format for each location
will include an approximately 2-hour workshop format followed by a 2-hour walk audit in the
community.
Task 3.3—Equity Analysis
Kimley-Horn will prepare an equity analysis to support the Safety Action Plan that is responsive to the
needs and priorities of all communities. Kimley-Horn will complete the following activities:
• Develop a map and corresponding database that includes the geographic location and
physical characteristics of areas of underserved population as it relates to equity and safety
factors in the Safety Action Plan. Kimley-Horn will use the SS4A Underserved Community
Mapping Tool to identify underserved area.
• Identify the communities that are most affected by crashes by mode.
• Assess the demographic characteristics of these communities, including race, ethnicity,
income, and other relevant factors, to understand whether certain groups are
disproportionately impacted by safety risks.
• Evaluate the effectiveness of current safety measures in addressing the needs of these
communities and identify any gaps or areas for improvements.
• Consider the potential unintended consequences of proposed safety actions and develop
strategies to mitigate these risks.
• Identify community leaders in underserved areas. Kimley-Horn will coordinate with these
leaders to develop public input strategies and engage stakeholders from their communities.
Engagement will be done as a part of Tasks 3.1 and 3.2.
Task 3 Deliverables:
• On-line Survey for Public Engagement
• Summary of On-line Survey Results
• Up to six (6) Public Engagement Meetings
• Summary of Public Engagement Meetings
• Up to four(4) Community Walk Audits
• Equity map showing geographic areas of underserved communities.
TASK 4—RECOMMENDATIONS DEVELOPMENT
Kimley-Horn will develop recommendations based on information and feedback from Task 2 and
Task 3 that prioritize the location and types of solutions included in the Safety Action Plan. Kimley-
Horn will develop the recommendations with the USDOT Implementation Grant requirements in mind
so that projects can be submitted for Implementation Grant funding by the City.
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Task 4.1 —Identify Policy and Process Changes
Based on information gathered in Task 2 and Task 3, Kimley-Horn will identify policy and process
changes that should be considered. These will consist of not only engineering changes but also
changes related to safety enforcement, education and outreach efforts, emergency response,
process improvements and other factors. These recommendations will conform to guidelines of the
Safe System Approach adopted as part of USDOT's National Roadway Safety Strategy.
Task 4.2—Strategy and Project Selection
Kimley-Horn will develop strategy and project selection through the prioritization process. Strategy
and project selection will be data driven and will rely on input from local officials and the public.
FHWA-proven safety counter-measures, Highway Safety Improvement Program (HSIP) approved
safety counter-measures, local road safety plans, and other sources will be reviewed and applied
when developing strategies and projects.
Feasible strategies may range from physical design treatments to policy, education, enforcement, and
technology options. Kimley-Horn will focus on FHWA Proven Safety Countermeasures and National
Highway Traffic Safety Administration's (NHTSA) Countermeasures That Work when developing
recommendations.
• Appropriate Speed Limits • Median Barriers
• Bicycle Lanes • Safety Edge
• Crosswalk Visibility Enhancements • Access Management
• Medians and Pedestrian Refuge Islands • Dedicated Left and Right Turn Lanes at
• Pedestrian Hybrid Beacons Intersections
• Rectangular Rapid Flashing Beacons . Roundabouts
• Road Diets • Lighting
• Walkways • Pavement Friction Management
• Enhanced Delineation • Road Safety Audits
• Rumble Strips
For each recommendation, Kimley-Horn will prepare a project description, cost estimate, and benefit-
cost ratio to inform a SS4A Implementation Grant. This information will also be useful for other grant
sources, such as Highway Safety Improvement Program.
Kimley-Horn will conduct a workshop with the City to present recommended strategies, projects, and
the criteria used for strategy and project selection and prioritization. Kimley-Horn will provide notes of
the workshop and adjust the recommendations and prioritization criteria based on the input from the
workshop. A revised set of prioritized recommendations will be provided to the City.
Task 4.3—Identify Safety Benefits and Program Targets
Kimley-Horn will work with the City to identify key performance metrics that will help to inform
stakeholders, elected officials, and the public of our progress toward improving safety. Metrics will
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include mitigation efforts (quantity of safety improvements implemented) and reduction in the number
and rate of fatal and serious injury crashes.
Kimley-Horn will quantify the benefits of systemic, corridor, and intersection improvements with crash
reduction factors where possible. An equity component will be considered in all improvements to
target underserved communities in the prioritization process. Kimley-Horn will identify the weight
placed on various safety benefits, such as specific underserved communities or certain road users,
through our engagement efforts.
Task 4 Deliverables:
• Recommendations Selection and Prioritization Workshop
• Meeting notes from Recommendations Selection and Prioritization Workshop
• Prioritized project recommendations and strategies
• Performance metrics to be utilized on interactive safety dashboard
TASK 5—REPORTING AND DOCUMENTATION
Kimley-Horn will develop a project website that will be hosted as a stand-alone website. The project
website will include information on all public engagement and outreach tasks, surveys, overview of
safety and safety countermeasures, and reports once they have been approved as final by the City.
Kimley-Horn will develop an interactive performance dashboard to track progress towards improving
safety and implementing recommendations in the Safety Action Plan. Metrics will consist of
mitigation efforts (quantity of safety improvements implemented) and reduction in the number and
rate of fatal and serious injury crashes. Kimley-Horn will input the initial data into the dashboard and
will provide the City with training on use and maintenance of the dashboard.
Kimley-Horn will develop a draft Safety Action Plan report. The City will provide comments on the
draft document within two weeks of receiving the documents. Kimley-Horn will meet with the City to
review the comments. Kimley-Horn will address the comments and develop the final Safety Action
Plan report.
To improve transparency and reporting to the public, final reports will be made publicly available on
the project website.
Task 5 Deliverables:
• Project website content
• Safety performance dashboard
• Public Involvement Summary
• Equity Analysis Technical Report
• Draft and Final Safety Action Plan Documents
Additional Services
Any services not specifically provided for in the above scope will be billed as additional services and
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performed at our then current hourly rates. Additional services we can provide include, but are not
limited to, the following:
• Additional public engagement meetings
• Intersection and roadway capacity analysis
• Roadway and Intersection Design
• Safety Crash Analytics Dashboard
• Roadway Safety Audits
• Implementation Grant Applications
Schedule
We will provide our services as expeditiously as practicable with the goal of completing the Final Safety
Action Plan prior to December 31, 2024.
Fee and Expenses
Kimley-Horn will perform the services in Tasks 1 —5 for the total lump sum fee below. Individual task
amounts are informational only. All permitting, application, and similar project fees will be paid directly
by the Client.
1 Project Management $ 30,000.00
2 Data Collection and Safety Analysis $ 62,500.00
3 Engagement and Equity $ 71,400.00
4 Recommendations Development $ 33,400.00
5 Reporting and Documentation $ 57,700.00
Total Lump Sum $255,000.00
Lump sum fees will be invoiced monthly based upon the overall percentage of services performed.
Payment will be due within 25 days of your receipt of the invoice and should include the invoice number
and Kimley-Horn project number.
Closure
In addition to the matters set forth herein, our Agreement shall include and be subject to, and only to,
the attached Standard Provisions, which are incorporated by reference. As used in the Standard
Provisions, "Kimley-Horn" shall refer to Kimley-Horn and Associates, Inc., and "Client' shall refer to
City of Batesville.
Kimley-Horn, in an effort to expedite invoices and reduce paper waste, submits invoices via email in a
PDF. We can also provide a paper copy via regular mail if requested. Please include the invoice
number and Kimley-Horn project number with all payments. Please provide the following information:
Please email all invoices to
Please copy
• • 6750 Poplar Avenue,Suite •11 Memphis, •1 1•
Kim ey>>>Horn Page 9
To proceed with the services, please have an authorized person sign this Agreement below and return
to us. We will commence services only after we have received a fully-executed agreement. Fees and
times stated in this Agreement are valid for sixty (60) days after the date of this letter.
To ensure proper set up of your projects so that we can get started, please complete and return with
the signed copy of this Agreement the attached Request for Information. Failure to supply this
information could result in delay in starting work on this project.
We appreciate the opportunity to provide these services. Please contact me if you have any questions.
Sincerely,
KIMLEY-HORN AND ASSOCIATES, INC.
Signed, Signed: � ,r4`����
Printed Name: Drake`Danle Printed Name: Douglas Swett
Title: Vice President Title: Associate
CITY OF BATESVILLE
SIGNED:
PRINTED NAME:
TITLE:
DATE:
Client's Federal Tax ID:
Client's Business License No.:
Client's Street Address:
Attachment—Request for Information
Attachment—Standard Provisions
Kimley>>>Horn Page 10
Request for Information
Please return this information with your signed contract; failure to provide this information could result
in delay in starting your project
Client Identification
Full, Legal Name of Client
Mailing Address for Invoices
Contact for Billing Inquiries
Contact's Phone and e-mail
Client is (check one) Owner Agent for Owner Unrelated to
Owner
Property Identification
Parcel Parcel Parcel Parcel
Street Address
County in which
Property is Located
Tax Assessor's
Number(s)
Property Owner Identification
Owner 1 Owner 2 Owner 3 Owner 4
Owner(s) Name
Owner(s) Mailing
Address
Owner's Phone No.
Owner of Which
Parcel#?
Project Funding Identification—List Funding Sources for the Project
Attach additional sheets if there are more than 4 parcels or more than 4 owners
�� • • 6750 Poplar Avenue, Suite 611 Memphis, •� • �•
KIMLEY-HORN AND ASSOCIATES, INC.
STANDARD PROVISIONS
1) Kimley-Horn's Scope of Services and Additional Services. Kimley-Horn will perform only the services
specifically described in this Agreement. If requested by the Client and agreed to by Kimley-Horn, Kimley-Horn
will perform Additional Services, which shall be governed by these provisions. Unless otherwise agreed to in
writing, the Client shall pay Kimley-Horn for any Additional Services an amount based upon Kimley-Horn's then-
current hourly rates plus an amount to cover certain direct expenses including telecommunications, in-house
reproduction, postage, supplies, project related computer time, and local mileage. Other direct expenses will be
billed at 1.15 times cost.
2) Client's Responsibilities. In addition to other responsibilities herein or imposed by law,the Client shall:
a. Designate in writing a person to act as its representative, such person having complete authority to transmit
instructions, receive information, and make or interpret the Client's decisions.
b. Provide all information and criteria as to the Client's requirements, objectives,and expectations for the project and
all standards of development, design, or construction.
c. Provide Kimley-Horn all available studies, plans, or other documents pertaining to the project, such as surveys,
engineering data,environmental information, etc., all of which Kimley-Horn may rely upon.
d. Arrange for access to the site and other property as required for Kimley-Horn to provide its services.
e. Review all documents or reports presented by Kimley-Horn and communicate decisions pertaining thereto within
a reasonable time so as not to delay Kimley-Horn.
f. Furnish approvals and permits from governmental authorities having jurisdiction over the project and approvals
and consents from other parties as may be necessary.
g. Obtain any independent accounting, legal, insurance, cost estimating, and feasibility services required by Client.
h. Give prompt written notice to Kimley-Horn whenever the Client becomes aware of any development that affects
Kimley-Horn's services or any defect or noncompliance in any aspect of the project.
3) Period of Services. Unless otherwise stated herein, Kimley-Horn will begin work after receipt of a properly
executed copy of this Agreement. This Agreement assumes conditions permitting continuous and orderly progress
through completion of the services. Times for performance shall be extended as necessary for delays or
suspensions due to circumstances that Kimley-Horn does not control. If such delay or suspension extends for more
than six months, Kimley-Horn's compensation shall be renegotiated.
4) Method of Payment. Client shall pay Kimley-Horn as follows:
a. Invoices will be submitted periodically for services performed and expenses incurred. Payment of each invoice
will be due within 25 days of receipt. The Client shall also pay any applicable sales tax. All retainers will be held
by Kimley-Horn and applied against the final invoice. Interest will be added to accounts not paid within 25 days at
the maximum rate allowed by law. If the Client fails to make any payment due under this or any other agreement
within 30 days after Kimley-Horn's transmittal of its invoice, Kimley-Horn may, after giving notice to the Client,
suspend services and withhold deliverables until all amounts due are paid.
b. If the Client relies on payment or proceeds from a third party to pay Kimley-Horn and Client does not pay Kimley-
Horn's invoice within 60 days of receipt, Kimley-Horn may communicate directly with such third party to secure
payment.
c. If the Client objects to an invoice, it must advise Kimley-Horn in writing giving its reasons within 14 days of receipt
of the invoice or the Client's objections will be waived, and the invoice shall conclusively be deemed due and
owing. If the Client objects to only a portion of the invoice, payment for all other portions remains due.
d. If Kimley-Horn initiates legal proceedings to collect payment, it may recover, in addition to all amounts due, its
reasonable attorneys' fees, reasonable experts' fees, and other expenses related to the proceedings. Such
expenses shall include the cost, at Kimley-Horn's normal hourly billing rates, of the time devoted to such
proceedings by its employees.
e. The Client agrees that the payment to Kimley-Horn is not subject to any contingency or condition. Kimley-Horn
may negotiate payment of any check tendered by the Client,even if the words"in full satisfaction"orwords intended
to have similar effect appear on the check without such negotiation being an accord and satisfaction of any disputed
debt and without prejudicing any right of Kimley-Horn to collect additional amounts from the Client.
5) Use of Documents. All documents and data prepared by Kimley-Horn are related exclusively to the services
described in this Agreement and may be used only if the Client has satisfied all of its obligations under this
Agreement. They are not intended or represented to be suitable for use or reuse by the Client or others on
extensions of this project or on any other project. Any modifications by the Client to any of Kimley-Horn's
documents, or any reuse of the documents without written authorization by Kimley-Horn will be at the Client's sole
risk and without liability to Kimley-Horn, and the Client shall indemnify, defend and hold Kimley-Horn harmless
from all claims, damages, losses and expenses, including but not limited to attorneys' fees, resulting therefrom.
Kimley-Horn's electronic files and source code remain the property of Kimley-Horn and shall be provided to the
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Client only if expressly provided for in this Agreement. Any electronic files not containing an electronic seal are
provided only for the convenience of the Client and use of them is at the Client's sole risk. In the case of any
defects in the electronic files or any discrepancies between them and the hardcopy of the documents prepared by
Kimley-Horn,the hardcopy shall govern.
6) Intellectual Property. Kimley-Horn may use or develop its proprietary software, patents,copyrights,trademarks,
trade secrets, and other intellectual property owned by Kimley-Horn or its affiliates ("Intellectual Property") in the
performance of this Agreement. Unless explicitly agreed to in writing by both parties to the contrary, Kimley-Horn
maintains all interest in and ownership of its Intellectual Property and conveys no interest, ownership, license to
use, or any other rights in the Intellectual Property to Client. Any enhancements of Intellectual Property made
during the performance of this Agreement are solely owned by Kimley-Horn and its affiliates. If Kimley-Horn's
services include providing Client with access to or a license for Kimley-Horn's(or its affiliates')proprietary software
or technology, Client agrees to the terms of the Software License Agreement set forth at https://www.kimley-
horn.com/khts-software-license-agreement ("the License Agreement") which terms are incorporated herein by
reference.
7) Opinions of Cost. Because Kimley-Horn does not control the cost of labor, materials, equipment or services
furnished by others, methods of determining prices, or competitive bidding or market conditions, any opinions
rendered as to costs, including but not limited to the costs of construction and materials, are made solely based
on its judgment as a professional familiar with the industry. Kimley-Horn cannot and does not guarantee that
proposals, bids or actual costs will not vary from its opinions of cost. If the Client wishes greater assurance as to
the amount of any cost, it shall employ an independent cost estimator. Kimley-Horn's services required to bring
costs within any limitation established by the Client will be paid for as Additional Services.
8) Termination. The obligation to provide further services under this Agreement may be terminated by either party
upon seven days'written notice in the event of substantial failure by the other party to perform in accordance with
the terms hereof,or upon thirty days'written notice for the convenience of the terminating party. Kimley-Horn shall
be paid for all services rendered and expenses incurred to the effective date of termination, and other reasonable
expenses incurred by Kimley-Horn as a result of such termination.
9) Standard of Care. The standard of care applicable to Kimley-Horn's services will be the degree of care and skill
ordinarily exercised by consultants performing the same or similar services in the same locality at the time the
services are provided. No warranty, express or implied, is made or intended by Kimley-Horn's performance of
services, and it is agreed that Kimley-Horn is not a fiduciary with respect to the Client.
10) LIMITATION OF LIABILITY. In recognition of the relative risks and benefits of the Project to the Client and Kimley-
Horn,the risks are allocated such that,to the fullest extent allowed by law,and notwithstanding any other provisions
of this Agreement or the existence of applicable insurance coverage, that the total liability, in the aggregate, of
Kimley-Horn and Kimley-Horn's officers, directors, employees, agents, and subconsultants to the Client or to
anyone claiming by, through or under the Client, for any and all claims, losses, costs or damages whatsoever
arising out of or in any way related to the services under this Agreement from any causes, including but not limited
to, the negligence, professional errors or omissions, strict liability or breach of contract or any warranty, express
or implied, of Kimley-Horn or Kimley-Horn's officers, directors, employees, agents, and subconsultants, shall not
exceed twice the total compensation received by Kimley-Horn under this Agreement or $50,000, whichever is
greater. Higher limits of liability may be negotiated for additional fee. This Section is intended solely to limit the
remedies available to the Client or those claiming by or through the Client,and nothing in this Section shall require
the Client to indemnify Kimley-Horn.
11) Mutual Waiver of Consequential Damages. In no event shall either party be liable to the other for any
consequential,incidental, punitive,or indirect damages including but not limited to loss of income or loss of profits.
12) Construction Costs. Under no circumstances shall Kimley-Horn be liable for extra costs or other consequences
due to unknown conditions or related to the failure of contractors to perform work in accordance with the plans and
specifications. Kimley-Horn shall have no liability whatsoever for any costs arising out of the Client's decision to
obtain bids or proceed with construction before Kimley-Horn has issued final, fully approved plans and
specifications. The Client acknowledges that all preliminary plans are subject to substantial revision until plans
are fully approved and all permits obtained.
13) Certifications. All requests for Kimley-Horn to execute certificates, lender consents, or other third-party reliance
letters must be submitted to Kimley-Horn at least 14 days prior to the requested date of execution. Kimley-Horn
shall not be required to execute certificates, consents, or third-party reliance letters that are inaccurate,that relate
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to facts of which Kimley-Horn does not have actual knowledge, or that would cause Kimley-Horn to violate
applicable rules of professional responsibility.
14) Dispute Resolution. All claims arising out of this Agreement or its breach shall be submitted to mediation by a
mediator agreed to by both parties prior to the filing of litigation.
appliGable statutes.
15) Hazardous Substances and Conditions. Kimley-Horn shall not be a custodian,transporter, handler, arranger,
contractor, or remediator with respect to hazardous substances and conditions. Kimley-Horn's services will be
limited to analysis, recommendations, and reporting, including, when agreed to, plans and specifications for
isolation, removal, or remediation. Kimley-Horn will notify the Client of unanticipated hazardous substances or
conditions of which Kimley-Horn actually becomes aware. Kimley-Horn may stop affected portions of its services
until the hazardous substance or condition is eliminated.
16) Construction Phase Services.
a. If Kimley-Horn prepares construction documents and Kimley-Horn is not retained to make periodic site visits, the
Client assumes all responsibility for interpretation of the documents and for construction observation,and the Client
waives any claims against Kimley-Horn in any way connected thereto.
b. Kimley-Horn shall have no responsibility for any contractor's means, methods, techniques, equipment choice and
usage, equipment maintenance and inspection, sequence, schedule, safety programs, or safety practices, nor
shall Kimley-Horn have any authority or responsibility to stop or direct the work of any contractor. Kimley-Horn's
visits will be for the purpose of endeavoring to provide the Client a greater degree of confidence that the completed
work of its contractors will generally conform to the construction documents prepared by Kimley-Horn. Kimley-
Horn neither guarantees the performance of contractors, nor assumes responsibility for any contractor's failure to
perform its work in accordance with the contract documents.
c. Kimley-Horn is not responsible for any duties assigned to it in the construction contract that are not expressly
provided for in this Agreement. The Client agrees that each contract with any contractor shall state that the
contractor shall be solely responsible for job site safety and its means and methods; that the contractor shall
indemnify the Client and Kimley-Horn for all claims and liability arising out of job site accidents; and that the Client
and Kimley-Horn shall be made additional insureds under the contractor's general liability insurance policy.
17) No Third-Party Beneficiaries;Assignment and Subcontracting. This Agreement gives no rights or benefits to
anyone other than the Client and Kimley-Horn, and all duties and responsibilities undertaken pursuant to this
Agreement will be for the sole benefit of the Client and Kimley-Horn. The Client shall not assign or transfer any
rights under or interest in this Agreement, or any claim arising out of the performance of services by Kimley-Horn,
without the written consent of Kimley-Horn. Kimley-Horn reserves the right to augment its staff with subconsultants
as it deems appropriate due to project logistics, schedules, or market conditions. If Kimley-Horn exercises this
right, Kimley-Horn will maintain the agreed-upon billing rates for services identified in the contract, regardless of
whether the services are provided by in-house employees, contract employees, or independent subconsultants.
18) Confidentiality. The Client consents to the use and dissemination by Kimley-Horn of photographs of the project
and to the use by Kimley-Horn of facts, data and information obtained by Kimley-Horn in the performance of its
services. If,however,any facts,data or information are specifically identified in writing by the Client as confidential,
Kimley-Horn shall use reasonable care to maintain the confidentiality of that material.
19) Miscellaneous Provisions. This Agreement is to be governed by the law of the State where the Project is located.
This Agreement contains the entire and fully integrated agreement between the parties and supersedes all prior
and contemporaneous negotiations, representations, agreements, or understandings, whether written or oral.
Except as provided in Section 1, this Agreement can be supplemented or amended only by a written document
executed by both parties. Any conflicting or additional terms on any purchase order issued by the Client shall be
void and are hereby expressly rejected by Kimley-Horn. If Client requires Kimley-Horn to register with or use an
online vendor portal for payment or any other purpose, any terms included in the registration or use of the online
vendor portal that are inconsistent or in addition to these terms shall be void and shall have no effect on Kimley-
Horn or this Agreement. Any provision in this Agreement that is unenforceable shall be ineffective to the extent of
such unenforceability without invalidating the remaining provisions.The non-enforcement of any provision by either
party shall not constitute a waiver of that provision nor shall it affect the enforceability of that provision or of the
remainder of this Agreement.
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