2024 05 21 City Council Meeting Packet 1

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Rev 06/2023 
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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 first to mediation in 
accordance with the American Arbitration Association as a condition precedent to litigation.  Any mediation or civil 
action by Client must be commenced within one year of the accrual of the cause of action asserted but in no event 
later than allowed by applicable 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 as signed 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 met hods; 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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