2024 05 21 City Council Meeting Packet 1

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Rev 06/2023 
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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 t he 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 en hancements 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 ind ependent 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 compensati on 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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