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2007-42~ Kimley-Horn ^ ~ ^ and Associates, Inc. May 10, 2006 Ms. Tamara Richardson, P.E., Director of Engineering and Utilities City of Clermont 685 West Montrose Street Clermont, FL 34711 Re: City of Clermont -Legends Way Extension Dear Ms. Richardson: With respect to our ongoing Master Services Agreement dated February 9, 2003, Kimley-Horn and Associates, Inc. ("KHA") is pleased to submit this letter agreement to provide professional engineering services to the City of Clermont in accordance with the terms and conditions set forth herein. The scope of services is outlined on the following pages and is based on our site visits to Legends Way site and our conversation with you. PROJECT UNDERSTANDING 1. Based on our meeting and site visit, KHA understands that the City would like to construct a roadway extension for Legends Way. We understand that the Legend Way extension begins approximately 500 feet east of Citrus Tower Boulevard and ends approximately 2,000 feet east of Citrus Tower Boulevard. Approximate length of the project is 0.28 miles. 2. KHA Understands that the project area is served by a master stormwater management system previously permitted for the entire project area. It is assumed that St. Johns River Water Management District (SJRWMD) will not require modification of the stormwater model or to the mater stormwater management system as approved. Direct discharge to this pond will be designed and constructed under this project. Other design and permitting of off-site improvements is currently not anticipated in conjunction with this project. Design and permitting of off-site improvements, if required, will be considered additional services. 3. KHA understands the right-of--way for the Legends Way Extension has been dedicated to the City and is 80' wide. The roadway section will consist of a 2-lane urban section with a sidewalk and 2-bicycle lanes. ^ 3404 Southern Trace The Villages, Florida 32162 ^ TEL 352 259 2232 FAX 352 259 1584 ^~~ Kimley-Horn ~ and Associates, Inc. Ms. Tamara Richardson, City of Clermont May 10, 2006, Page 2 4. Continuation of the existing water main will be provided under this project. Based on the plan prepared for existing Legends Way, a 16" water main stub out was provided. This 16" water main will be extended and connect to the Citrus Tower Boulevard point of connection provided. 5. The Consultant shall provide 30%, 60%, 90% and 100% progress review submittals, in half size (11 inches x 17 inches) format. Final submittal will be provided on full size 22"x 34" sheets. SCOPE OF SERVICES TASK 1-Existing Condition Survey KHA shall retain Florida Geodetic Survey to perform an existing field condition survey, including right-of--way and topography. All existing utilities and drainage connection will also be identified along Legends Way. TASK 2-Geotechnical Investigation KHA will retain Andreyev Engineering to perform a geotechnical analysis of the proposed site. Analysis will include Standard Penetration Test borings within the proposed roadway pavement areas. TASK 3-Natural Resource Assessment KHA will conduct a Natural Resource Assessment to identify wetlands and surface waters and upland habitats (including potential sensitive habitats) on-site and will evaluate the potential for usage by listed species. In preparing this assessment, the Consultant will conduct the following tasks: A. Review readily available natural resource documentation, previous environmental studies (provided by client), and listed species information; B. Request information from the Florida Natural Areas Inventory (FNAI) and the Florida Fish and Wildlife Conservation Commission (FWC) regarding known occurrences of listed species on and in the vicinity of the subject property. C. Request information from the State Historic Preservation Officer (SHPO) regarding historic and archaeological resources. D. Review the Flood Insurance Rate Map (FIRM) to determine if the project is within the 100 year floodplain. E. Conduct site reconnaissance. ^ ~ ^ Kimley-Horn ~ and Associates, Inc. Ms. Tamara Richardson, City of Clermont May 10, 2006, Page 3 F. Map habitat types, including wetlands, on a blue-line aerial photograph during site reconnaissance. G. Prepare a land cover map classifying the habitats on-site based on the Florida Land Use, Cover, and Forms Classification System (FLUCFCS) and showing approximate acreage of each land cover. The acreage of upland and wetland habitats shown will be approximate based on aerial interpretation. Field flagging of wetland and surface water areas is not included in this scope of work. H. Prepare a soils map, FIRM Map and location map. I. Prepare a Technical Memorandum summarizing our findings, permit requirements if development proceeds on this site and additional surveys or evaluations required, if applicable. These additional services could include wetland delineation, listed species surveys, archaeological or historical surveys, etc. TASK 4 - En~ineerin~ Plans A. KHA shall develop the geometry for the project using the design standards in the City of Clermont Standards & FDOT Manual of Uniform Minimum Standards for Design, Construction and Maintenance for Streets and Highway that are appropriate. B. KHA shall complete a drainage design for the project using the design standards that are applicable for the appropriate stormwater management district and City standards. The analysis also includes impacts to adjacent property owners. C. KHA shall analyze the existing dry retention located SW of the project limits. The scope of service assumes the existing pond has adequate storage volume and the project does not include an additional pond site. It is the City's responsibility to obtain all legal documentation for the additional stormwater discharge for the proposed roadway necessary for SJRWMD permitting. D. The Consultant shall prepare engineering plans for the project to the level of detail required by the City of Clermont Land Development Code, St. Johns River Water Management District, and Florida Department of Environmental Protection. The Engineering Plans will generally include: 1. Cover Sheet 2. General notes and typical sections 3. Drainage maps ^~^ Kimley-Horn ~ and Associates, Inc. 4. Plan and profile sheets 5. Standard drawings and detail 6. Cross sections 7. Signing and marking details Ms. Tamara Richardson, City of Clermont May 10, 2006, Page 4 TASK 5 -Permitting KHA will prepare and submit applications for development approvals to the following agencies: SJRWMD Permitting It is assumed that the site is served by a master stormwater management system, previously permitted. This task does not include any design modifications to the previously permitted stormwater management system. A. KHA will prepare and submit one application for a Standard General Environmental Resource Permit (ERP) to the St. Johns River Water Management (SJRWMD). B. KHA will respond and prepare two (2) resubmittal packages for request for additional information. Florida Department of Environmental Protection (FDEP) Permitting A. KIIA will prepare and submit a FDEP submittal for the water main extension along Legends Way. In addition, KHA will respond and prepare resubmittal packages for up to two (2) request for additional information. B. KHA will prepare a general Stormwater Pollution Prevention Plan (SWPPP) and submit one application for a National Pollutant Discharge Elimination System (NPDES) permit to FDEP. TASK 6 -Post Design Services Bid Document Preparation and Contractor Notification. Consultant will prepare and assemble construction bidding documents, including specifications for the subject Work and the construction contract, based on "Standard General Conditions of the Construction Contract" (EJCDC No. C- 700, 2002 edition) prepared by the Engineers Joint Contract Documents Committee. Consultant will issue bid packages for the submittal of quotations to perform the work and conduct pre-bid meetings with potential bidders. We will tabulate the bids received and evaluate the compliance of the bids received with the bidding documents. We ^~^ Kimley-Horn ~ and Associates, Inc. Ms. Tamara Richazdson, City of Clermont May 10, 2006, Page 5 will prepare a written summary of this tabulation and evaluation. If requested by the Client, Consultant will notify the selected Contractor. 2. Shop Drawings and Samples. Consultant will review and approve or take other appropriate action in respect to Shop Drawings and Samples and other data which Contractor is required to submit, but only for conformance with the information given in the Contract Documents. Such review and approvals or other action will not extend to means, methods, techniques, equipment choice and usage, sequences, schedules, or procedures of construction or to related safety precautions and programs. Pre-Construction Conference. Consultant will attend aPre-Construction Conference prior to commencement of Work at the Site. Visits to Site and Observation of Construction. Consultant will provide on-site construction observation services during the construction phase. Consultant will make visits at intervals as directed by Client in order to observe the progress of the Work. Such visits and observations by Consultant are not intended to be exhaustive or to extend to every aspect of Contractor's work in progress. Observations are to be limited to spot checking, selective measurement, and similar methods of general observation of the Work based on Consultant's exercise of professional judgment. Based on information obtained during such visits and such observations, Consultant will evaluate whether Contractor's work is generally proceeding in accordance with the Contract Documents, and Consultant will keep Client informed of the general progress of the Work. The purpose of Consultant's site visits will be to enable Consultant to better carry out the duties and responsibilities specifically assigned in this Agreement to Consultant, and to provide Client a greater degree of confidence that the completed Work will conform in general to the Contract Documents. Consultant shall not, during such visits or as a result of such observations of Contractor's work in progress, supervise, direct, or have control over Contractor's work, nor shall KHA have authority over or responsibility for the means, methods, techniques, equipment choice and usage, sequences, schedules, or procedures of construction selected by Contractor, for safety precautions and programs incident to Contractor's work, nor for any failure of Contractor to comply with laws and regulations applicable to Contractor's furnishing and performing the Work. Accordingly, Consultant neither guarantees the performance of any Contractor nor assumes responsibility for any ^~^ Kimley-Horn ~ and Associates, Inc. Ms. Tamaza Richazdson, City of Clermont May 10, 2006, Page 6 Contractor's failure to furnish and perform its work in accordance with the Contract Documents. 4. Clarifications and Interpretations. Consultant will respond to reasonable and appropriate Contractor requests for information and issue necessary clarifications and interpretations of the Contract Documents to Client as appropriate to the orderly completion of Contractor's work. Any orders authorizing variations from the Contract Documents will be made by Client. Applications for Payment. Based on its observations and on review of applications for payment and accompanying supporting documentation, Consultant will determine the amounts that Consultant recommends Contractor be paid. Such recommendations of payment will be in writing and will constitute Consultant's representation to Client, based on such observations and review, that, to the best of Consultant's knowledge, information and belief, Contractor's work has progressed to the point indicated and that such work-in-progress is generally in accordance with the Contract Documents subject to any qualifications stated in the recommendation. In the case of unit price work, Consultant's recommendations of payment will include determinations of quantities and classifications of Contractor's work, based on observations and measurements of quantities provided with pay requests. 6. Substantial Completion. Consultant will, promptly after notice from Contractor that it considers the entire Work ready for its intended use, in company with Client and Contractor, conduct a site visit to determine if the Work is substantially complete. Work will be considered substantially complete following satisfactory completion of all items with the exception of those identified on a final punch list. If after considering any objections of Client, Consultant considers the Work substantially complete, Consultant will notify Client and Contractor. Final Notice of Acceptability of the Work. Consultant will conduct a final site visit to determine if the completed Work of Contractor is generally in accordance with the Contract Documents and the final punch list so that Consultant may recommend, in writing, final payment to Contractor. Accompanying the recommendation for final payment, Consultant shall also provide a notice that the Work is generally in accordance with the Contract Documents to the best of Consultant's knowledge, information, and belief based on the extent of its services and based upon information provided to Consultant upon which it is entitled to rely. ^~^ Kimley-Horn ~ and Associates, Inc. Ms. Tamara Richardson, City of Clermont May 10, 2006, Page 7 TASK 7- Additional Services KHA will remain available to provide Additional Services at the request of the Client. These additional services may include, but are not limited to: 1. Providing representation at public hearings and or meetings beyond those described above. 2. Construction observation and administration, beyond those described above. 3. Detailed Traffic Analyses. 4. Structural Engineering and retaining wall design. 5. Off-site improvement design and permitting. 6. Facilitation of Sign Permitting with Sumter County. 7. Any service not specifically described in the above Scope of Services. 8. Review and approve periodic payment requests and change orders 9. Wetland Delineation and Permitting. 10. Listed Species and permitting. INFORMATION TO BE PROVIDED BY THE CITY OF CLERMONT The following information, upon which the Consultant may rely, will be provided to ICHA by the City of Clermont or its representatives: a) Underground utility and roadway drainage as-builts (if available) b) Required Application fees for permitting c) Access to the study area for evaluation SCHEDULE We will provide our services as expeditiously as practicable to meet a mutually agreed upon schedule. ~ Kimley-Horn ^ ~ ^ and Associates, Inc. Ms. Tamara Richardson, City of Clermont May 10, 2006, Page 8 FEE AND BILLING We will provide the services described in Tasks 1 through 6 for the lump sum amount summarized below. TASK DESCRIPTION FEE 1 Existing Condition Survey $ 7,500 2 GeotechnicalInvestigation $ 2,500 3 Natural Resource Assessment $ 4,600 4 Engineering Plans $70,500 5 Permitting $ 8,700 6 Post Design Services $ 7,500 Direct Expenses (In-House Reimbursable Expenses)-Estimated $ 1,200 7 Additional Services Hourly KHA will perform the services described in Tasks 1 - 6 of the Scope of Services for a lump sum labor fee of $102,500. KHA will provide the services described in Task 7 of the Scope of Services on a labor fee plus expense basis according to the attached rate schedule. For all tasks, direct reimbursable expenses such as express delivery services, air travel, and other direct expenses will be billed at 1.15 times cost. No work outside of the above Scope of Services (Task 1 - 7) will be conducted without the written authorization of Client. All permitting, application, and similar project fees will be paid directly by the Client. Fees will be invoiced monthly based, as applicable, upon the percentage of services performed or actual services performed and expenses incurred as of the invoice date. Payment will be due within 25 days of the date of the invoice. ^~^ Kimley-Horn ~ and Associates, Inc. CLOSURE Ms. Tamara Richardson, City of Clermont May 10, 2006, Page 9 In addition to the matters set forth herein, this agreement shall include, and shall be subject to, and only our ongoing Master Services Agreement dated February 9, 2003. As used in the Master Services Agreement, the term "the Consultant" shall refer to Kimley-Horn and Associates, Inc., and the term "the Client" shall refer to the City of Clermont. If you concur with all the foregoing and wish to direct us to proceed with the services set forth herein, please have authorized persons execute both copies of this letter agreement in the space provided below, retain one copy, and return one copy to us. Fees and times stated in this agreement are valid for sixty (60) days after the date of this letter. We appreciate the opportunity to perform this service for you. Please contact me if you have any questions. Sincerely, HIMLEY-HORN AND ASSOCIATES, INC. ~~ Richard V. Busche, P.E. Associate Christopher M. Germans, P.E. Associate P:~I,EGENDS WAY~ADMIN~Proposal.doc Attachment -Standard Provisions Agreed to this o2'J~~ay of l9c.7 , 200! 7 CITY OF CLERMONT By: N~~ C c : ~ c~ ~ . ~ U(V ~ ~ ~~ ~ .J ~ . ,Mayor (Pri~t or Type Name) ~~ "~ ~~. Attest: '~--%~'~--~- i `' r ~" ~\ CaC ~ . ~- \~_~< :.~ ;Witness (Print or ype Name) - ~ Kimley-Horn Ms. Tamaza Richazdson, City of Clermont ^~^ and Associates, ~nC. May 10, 2006, Page 10 KIMLEY-HORN AND ASSOCIATES, INC. STANDARD PROVISIONS (1) Consultant's Scope of Services and Additional Services The Consultant's undertaking to perform professional services extends only to the services specifically described in this Agreement. However, if requested by the Client and agreed to by the Consultant, the Consultant will perform additional services ("Additional Services"), and such Additional Services shall be governed by these provisions. Unless otherwise agreed to in writing, the Client shall pay the Consultant for the performance of any Additional Services an amount based upon the Consultant's then-current hourly rates plus an amount to cover certain direct expenses including in-house duplicating, local mileage, telephone calls, postage, and word processing. Other direct expenses will be billed at 1.15 times cost. Technical use of computers for design, analysis, GIS, and graphics, etc., will be billed at $25.00 per hour. (2) Client's Responsibilities In addition to other responsibilities described herein or imposed by law, the Client shall: (a) Designate in writing a person to act as its representative with respect to this Agreement, 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 including all numerical criteria that are to be met and all standards of development, design, or construction. (c) Provide to the Consultant all previous studies, plans, or other documents pertaining to the project and all new data reasonably necessary in the Consultant's opinion, such as site survey and engineering data, environmental impact assessments or statements, zoning or other land use regulations, etc., upon all of which the Consultant may rely. (d) Arrange for access to the site and other private or public property as required for the Consultant to provide its services. (e) Review all documents or oral reports presented by the Consultant and render in writing decisions pertaining thereto within a reasonable time so as not to delay the services of the Consultant. (f) Furnish approvals and permits from governmental authorities having jurisdiction over the project and approvals and consents from other parties as may be necessary for completion of the Consultant's services. (g) Cause to be provided such independent accounting, legal, insurance, cost estimating and overall feasibility services as the Client may require or the Consultant may reasonably request in furtherance of the project development. (h) Give prompt written notice to the Consultant whenever the Client becomes aware of any development that affects the scope and timing of the Consultant's services or any defect or noncompliance in any aspect of the project. (i) Bear all costs incident to the responsibilities of the Client. (3) Period of Services Unless otherwise stated herein, the Consultant will begin work timely after receipt of an executed copy of this Agreement and will complete the services in a reasonable time. This Agreement is made in anticipation of conditions permitting continuous and orderly progress through completion of the services. Times for D~^ Kimley-Horn ~ and Associates, Inc. Ms. Tamara Richardson, City of Clermont May 10, 2006, Page 11 performance shall be extended as necessary for delays or suspensions due to circumstances that the Consultant does not control. If such delay or suspension extends for more than six months (cumulatively), Consultant's compensation shall be renegotiated. (4) Method of Payment Compensation shall be paid to the Consultant in accordance with the following provisions: (a) Invoices will be submitted by the Consultant to the Client periodically for services performed and expenses incurred. Payment of each invoice will be due within 25 days of receipt. The Client shall also pay to the Consultant all transaction taxes, if any, whether state, local, or federal, levied with respect to amounts paid hereunder, including but not limited to sales tax. The Consultant shall be compensated in U.S. dollars. 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 the Consultant under this or any other agreement within 30 days after the Consultant's transmittal of its invoice, the Consultant may, after giving notice to the Client, suspend services under this Agreement until all amounts due are paid in full. (b) If the Client objects to an invoice, it must advise the Consultant 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. (c) The Client agrees that the payment to the Consultant is not subject to any contingency or condition. The Consultant may negotiate payment of any check tendered by the Client, even if the words "in full satisfaction" or words 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 the Consultant to collect additional amounts from the Client. (5) Use of Documents All documents, including but not limited to drawings, specifications and data or programs stored electronically, prepared by the Consultant 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, partial use or reuse by the Client or others on extensions of this project or on any other project. Any modifications made by the Client to any of the Consultant's documents, or any use, partial use or reuse of the documents without written authorization or adaptation by the Consultant will be at the Client's sole risk and without liability to the Consultant, and the Client shall indemnify, defend and hold the Consultant harmless from all claims, damages, losses and expenses, including but not limited to attorneys' fees, resulting therefrom. Any authorization or adaptation will entitle the Consultant to further compensation at rates to be agreed upon by the Client and the Consultant. Any electronic files 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 the Consultant, the hardcopy shall govern. Only printed copies of documents conveyed by the Consultant may be relied upon. Because data stored in electronic media format can deteriorate or be modified without authorization of the data's creator, the Client has ^~^ Kimley-Horn ~ and Associates, Inc. Ms. Tamara Richardson, City of Clermont May 10, 2006, Page 12 60 days to perform acceptance tests, after which it shall be deemed to have accepted the data transferred. (6) Opinions of Cost Because the Consultant 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 opinions as to the costs of construction and materials, shall be made on the basis of its experience and represent its judgment as an experienced and qualified professional, familiar with the industry. The Consultant 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. Consultant's services required to bring costs within any limitation established by the Client will be paid for as Additional Services. (7) 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 through no fault of the terminating party, or upon thirty days' written notice for the convenience of the terminating party. In the event of any termination, the Consultant shall be paid for all services rendered and expenses incurred to the effective date of termination, and other reasonable expenses incurred by the Consultant as a result of such termination. If the Consultant's compensation is a fixed fee, the amount payable for services will be a proportional amount of the total fee based on the ratio of the amount of the services performed, as reasonably determined by the Consultant, to the total amount of services which were to have been performed. (8) Insurance The Consultant is protected by Workers' Compensation insurance, professional liability insurance, and general liability insurance and will exchange certificates of insurance upon request. If the Client directs the Consultant to obtain increased insurance coverage, or if the nature of the Consultant's activities requires additional insurance coverage, the Consultant will take out such additional insurance, if obtainable, at the Client's expense. (9) Standard of Care In performing its professional services, the Consultant will use that degree of care and skill ordinarily exercised, under similar circumstances, by reputable members of its profession in the same locality at the time the services are provided. No warranty, express or implied, is made or intended by the Consultant's undertaking herein or its performance of services, and it is agreed that the Consultant 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 both the Client and the Consultant, the risks have been allocated such that the Client agrees, to the fullest extent of the law, and notwithstanding any other provisions of this Agreement, that the total liability, in the aggregate, of the Consultant and the Consultant'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, resulting from or in any way related to the services ^~^ Kimley-Horn ~ and Associates, Inc. Ms. Tamara Richardson, City of Clermont May 10, 2006, Page 13 under this Agreement from any cause or 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 the Consultant or the Consultant's officers, directors, employees, agents, and subconsultants, shall not exceed twice the total compensation received by the Consultant under this Agreement or $50,000, whichever is greater. Higher limits of liability may be negotiated for additional fee. Under no circumstances shall the Consultant be liable for lost profits or consequential damages, for extra costs or other consequences due to changed conditions, or for costs related to the failure of contractors to perform work in accordance with the plans and specifications. This Section 10 is intended solely to limit the remedies available to the Client, and nothing in this Section 10 shall require the Client to indemnify the Consultant. (11) Certifications The Consultant shall not be required to execute any certifications or other documents that might, in the judgment of the Consultant, increase the Consultant's risk or affect the availability, applicability, or cost of its insurance. (12) Dispute Resolution All claims by the Client arising out of this Agreement or its breach shall be submitted first to mediation in accordance with the Construction Industry Mediation Rules of 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. (13) Hazardous Substances and Conditions (a) Services related to determinations involving hazardous substances or conditions, as defined by federal or state law, are limited to those tasks expressly stated in the scope of services. In any event, Consultant shall not be a custodian, transporter, handler, arranger, contractor, or remediator with respect to hazardous substances and conditions. Consultant's services will be limited to professional analysis, recommendations, and reporting, including, when agreed to, plans and specifications for isolation, removal, or remediation. (b) The Consultant shall notify the Client of hazardous substances or conditions not contemplated in the scope of services of which the Consultant actually becomes aware. Upon such notice by the Consultant, the Consultant may stop affected portions of its services until the hazardous substance or condition is eliminated. The parties shall decide if Consultant is to proceed with its services and if Consultant is to conduct testing and evaluations, and the parties may enter into further agreements as to the additional scope, fee, and terms for such services. (c) Except to the extent of negligence, if any, on the part of the Consultant in performing services expressly undertaken in connection with hazardous substances and conditions, the Client agrees to hold harmless, indemnify, and defend the Consultant from and against any and all claims, losses, damages, liability, and costs in any way arising out or connected with the presence, discharge, release, or escape of hazardous substances or conditions of any kind, or environmental liability of any nature, in any manner related to services of the Consultant. ~~^ Kimley-Horn ~ and Associates, Inc. Ms. Tamara Richardson, City of Clermont May 10, 2006, Page 14 (14) Construction Phase Services (a) If the Consultant's services include the preparation of documents to be used for construction and the Consultant 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 the Consultant in any way connected thereto. (b) If the Consultant provides construction phase services, the Consultant shall have no responsibility for any contractor's means, methods, techniques, equipment choice and usage, sequence, schedule, safety programs, or safety practices, nor shall Consultant have any authority or responsibility to stop or direct the work of any contractor. The Consultant'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 the Consultant. Consultant 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) The Consultant is not responsible for any duties assigned to the design professional 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 for its means and methods; that the contractor shall indemnify the Client and the Consultant for all claims and liability arising out of job site accidents; and that the Client and the Consultant shall be made additional insureds under the contractor's general liability insurance policy. (15) Assignment and Subcontracting This Agreement gives no rights or benefits to anyone other than the Client and the Consultant, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole benefit of the Client and the Consultant. The Client shall not assign or transfer any rights under or interest in this Agreement without the written consent of the Consultant. The Consultant reserves the right to augment its staff with subconsultants as it deems appropriate due to project logistics, schedules, or market conditions. If the Consultant exercises this right, the Consultant 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. (16) Confidentiality The Client consents to the use and dissemination by the Consultant of photographs of the project and to the use by the Consultant of facts, data and information obtained by the Consultant in the performance of its services. If, however, any facts, data or information are specifically identified in writing by the Client as confidential, the Consultant shall use reasonable care to maintain the confidentiality of that material. (17) Miscellaneous Provisions This Agreement is to be governed by the law of the State of Florida. 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 ~ Kimley-Horn ~ ^ and Associates, Inc. Ms, Tamara Richardson, City of Clermont May 10, 2006, Page 15 document executed by both parties. Provided, however, that any conflicting or additional terms on any purchase order issued by the Client shall be void and are hereby expressly rejected by the Consultant. 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.