HomeMy Public PortalAbout2019.12.09 Kittelson Agreement Highway 55 Crossing AnalysisI ~ KITTELSON ~&ASSOCIATES
December 9, 2019
Mr. Nick Zaninovich
City of McCall
815 N. Samson Trail
McCall , ID 83638
RE : Highway 55 Crossing Analysis
Dear Nick:
Project#: 24525.0
101 South Capitol Boulevard, Suite 600
Boise , ID 83702
P 208.338.2683 F 208.338.2685
Attached is a proposal for evaluating traffic data prov ided by the City at the 3 rd Street/Lenora Street-
Railroad Avenue and 3 rd Street/Park Street intersections . Part "A" identifies our proposed services for
the project in accordance with the terms and conditions outlined in Part "B". This scope was developed
based on our discussions with the City and our understanding of the City's objectives.
We propose to conduct the services (detailed in Part "A" herein} on a time & materials basis for $4,100
(detailed in Table 1 of the attached Part "B"}.
This proposal (scope of work and budget} is effective for sixty days.
Nick Foster will serve as the Project Manager and Sonia Hennum Daleiden will serve as the Project
Principal providing senior review and quality assurance . Any questions of a technical or contractual
nature can be directed to either of us.
Please review this proposal at your earliest convenience . If the attached Professional Services Agreement
is satisfactory, please return a signed copy electronically. A fully executed copy will be returned for your
records . Thank you for the opportunity to propose on this project. If you have any questions please call
us at 208 .338 .2683 .
Sincerely,
KITIELSON & ASSOCIATES, INC.
-~ z~ c::r
Nick Foster
Associate Planner
FILENAME: H:l24124S2S
Principal Engineer
MCCALL HJ.<W
ANAL YSISIADMINIPI07_ CONTRACTjNSURANCE_RA TESl2452S_HJ.<WSSCROSSINGANAL YSIS_PROPOSAL -REDUNE.DOCX
SS CROSSINGS
Highway 55 Crossing Analysis
PROFESSIONAL SERVICES AGREEMENT
December 9, 2019
Kittelson & Associates, Inc.
101 South Capitol Boulevard, Suite 600
Boise, ID 83702
208.338 .2683 (P)
208.338.2685 (F)
2 4525.0
Page: 2 of8
City of McCall with an office at 815 N. Samson Trail, McCall ID 83638 (the "CLIENT") hereby enters into
this Professional Services Agreement (this "Agreement") with KITIELSON & ASSOCIATES, INC. to perform
the services as described in this Agreement's Part "A" -Scope of Work (the "Services") for the Highway
55 Crossing Analysis (the "Project"), subject to all of the provisions described in Part "B" Terms and
Conditions.
PART A -SCOPE OF WORK
Kittelson will evaluate crossing and turning movement data provided by the City of McCall at the 3 rd
Street/Lenora Street-Railroad Avenue and 3rd Street/Park Street intersections. The goal of this project is
to evaluate how people walking and driving are interacting across the southern legs of each intersection
now that the crosswalk across 3rd Street has been removed from these legs.
Assumptions related to this proposal include :
1) There are four hours of video at each intersection.
2) City staff will provide the data described below for each intersection .
Deviations from these assumptions may require adjustments to the project scope and/or budget.
Scope of Work
• Prepare spreadsheets for City staff to use to collect the following data from the videos:
o The number of vehicles turning across the southern leg (i .e., westbound left-turns and
eastbound right-turns). For each turning movement, the following data will be collected by
City staff:
• Whether a person was crossing the southern leg at the time of the turn.
• Whether there was a person waiting to cross the southern leg at the time of the
turn .
• Whether there was a potential conflict between the turning vehicle and a person
crossing the southern leg of the intersection .
o The number of people crossing the southern leg ofthe intersection (i.e., across 3 rd Street).
For each crossing , the following data will be collected by City staff:
• Whether there was a vehicle turning left across the southern leg of the intersection.
Kittelson & Associates, Inc.
• Whether there was a vehicle turning right across the southern leg of the
intersection.
Boise, Idaho
24525.0
Highway 55 Crossi ng Analysis Poge : 3 ofB
• Whether there were any veh icles present at the time of the crossing , and if so, how
many vehicles passed before a driver yielded .
• Whether there was a conflict between the person crossing and a motor vehicle (and
where the motor vehicle was coming from).
o The number of people crossing the northern leg of the intersection (i.e., across 3 rd Street).
For each crossing the following data will be collected by City staff so that driver yielding
rates and conflicts between the north and south sides can be compared.
• Whether there were any vehicles present at the time of the crossing, and if so , how
many vehicles passed before a driver yielded .
• Whether there was a conflict between the person crossing and a motor vehicle (and
where the motor vehicle was coming from).
• Analyze the data provided by the City and prepare a one -page memorandum describing our
interpretation of the findings (analysis results to be presented as an attachment).
• Participate in a conference call with City staff to review the findings presented in the draft
memorandum.
• Revise the memorandum once based on feedback from the City .
Kitte lso n & Associates, Inc. Boise, Idaho
Highway 55 Crossing Analysis
PART B -TERMS AND CONDITIONS
24525.0
Page:4 afB
I. GENERAL: The terms and conditions set forth herein shall govern all services subsequently
performed on behalf of CLIENT unless mutually agreed and changed by a written agreement signed
by KITIELSON & ASSOCIATES, INC. and CLIENT . In case any one or more of the provisions contained
in this Agreement shall be held unenforceable, the enforceability of the remaining provisions
contained herein shall not be impaired thereby.
II. LIMITATION OF LIABILITY: CLIENT AGREES THAT IN RECOGNITION OF THE RELATIVE RISKS AND
BENEFITS OF THE PROJECT, KITIELSON & ASSOCIATES, INC'S AGGREGATE JOINT, SEVERAL AND
INDIVIDUAL LIABILITY, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY,
NEGLIGENCE , PROFESSIONAL MALPRACTICE, STRICT LIABILITY, OR ANY OTHER LEGAL OR
EQUITABLE THEORY OF RECOVERY SHALL BE LIMITED TO AN AMOUNT NO GREATER THAN THREE
TIMES THE TOTAL COMPENSATION RECEIVED BY KITIELSON & ASSOCIATES, INC. UNDER THIS
AGREEMENT. THIS PROVISION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS
AGREEMENT .
Ill. LIMITATION OF REMEDY: CLIENT COVENANTS THAT IT WILL NOT, UNDER ANY CIRCUMSTANCES,
BRING A LAWSUIT OR CLAIM AGAINST KITIELSON & ASSOCIATES, INc.'S INDIVIDUAL EMPLOYEES,
OFFICERS, DIRECTORS OR SHAREHOLDERS AND THAT CLIENT'S SOLE REMEDY SHALL BE AGAINST
KITIELSON & ASSOCIATES, INC.
IV. WAIVER OF CONSEQUENTIAL DAMAGES: NEITHER KITIELSON & ASSOCIATES, INC. NOR ANY OF
ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS SHALL BE LIABLE FOR ANY INDIRECT, PUNITIVE,
CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO
FINES, PENALTIES AND LOST PROFITS, WHETHER SAID CLAIM IS BASED UPON CONTRACT,
WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL OR
EQUITABLE THEORY OF RECOVERY.
V. INDEMNITY: To the maximum extent allowed by law, CLIENT and KITIELSON & ASSOCIATES, INC.
shall indemnify, reimburse, and hold harmless each other and the indemnified party's employees,
officers, directors and agents from, for and against all claims, losses, legal costs and expenses
resulting from any bodily injury or property damage, but only to the extent caused by the
indemnifying party's negligence.
VI. OWNERSHIP OF DOCUMENTS: All drawings, plans, designs, specifications, photographs, models,
schematics, surveys, maps, reports, studies, analyses, estimates, minutes, diaries, field notes,
manuals, training and presentation materials, data, data bases, electronic files, file formats,
templates, procedures, scripts, links, specifically-created key commands, source code
documentation, software programs, calculations, summaries and other compilations of
information to be developed, produced, or provided by KITIELSON & ASSOCIATES, INC. as part of
the Services, including but not limited to all deliverables identified herein, whether completed or
in process, and all supporting documents and data, whether in hard copy or electronic or digital
format or capable of being converted to such format, constitute "Work Product."
Kittelson & Associates, Inc. Baise, Idaho
Highw a y 55 Crossing A nalysis
24525.0
Page :5af8
Work Product shall be the property of CLIENT, although KITILESON & ASSOCIATES, INC. shall be
permitted to retain reproducible copies . KITIELSON & ASSOCIATES, INC. shall not be liable for loss,
damage, or injury resulting from CLIENT'S use of Work Product for purposes other than as intended
or contemplated herein .
The parties intend that Work Product shall be "work made for hire," of which CLIENT shall be
deemed the author. To the extent any Work Product includes KITIELSON & ASSOCIATES, INc.'S
previously-developed intellectual property that is or could be protected by federal copyright,
patent, or trademark laws, or state trade secret laws, KITIELSON & ASSOCIATES, INC. hereby grants
to CLIENT a perpetual, royalty-free , fully-paid up, non -exclusive and irrevocable license to copy,
reproduce, perform, dispose of, and use and re-use, in whole or in part, such intellectual property,
and to authorize others to do so . Such previously-developed intellectual property may constitute
but is not limited to, data bases, software programs, templates, file formats, specifically-created
key commands, scripts, links, procedures, training manuals and other training materials, designs,
prototypes, plans, and other works provided or delivered to CLIENT by KITIELSON & ASSOCIATES,
INC.
VII. ELECTRONIC DOCUMENTS: If KITIELSON & ASSOCIATES , INC. provides CLIENT any documents or
other instruments of service in electronic form ("Electronic Documents"), acceptance and use of
the electronic documents by CLIENT shall be at CLIENT's sole risk and CLIENT shall:
VIII. Waive and covenant not to sue KITIELSON & ASSOCIATES, INC. or its employees alleging any
inaccuracy or defect of the Electronic Documents.
IX. Agree that KITIELSON & ASSOCIATES , INC. makes no representation with regard to the
compatibility of the Electronic Documents with any software or hardware or that the data is fit for
any specific use .
X. CLIENT agrees that prior to use of the Electronic Documents on any project other than the Project,
CLIENT shall retain the services of a licensed professional as necessary to review and revise the
Electronic Documents for compliance with the local laws, practices and standards of the place
where the Project will be located.
XI. DISPUTE RESOLUTION: In any dispute arising out of this Agreement or the Services, with the
exception of disputes relating to CLIENT 's non -payment, partial payment or late payment of any
amount due under an invoice issued by KITIELSON & ASSOCIATES, INC. ("Payment Disputes "), for
which the remedy will be in accordance with Article XIX of this Agreement, the Parties shall first
attempt to resolve the dispute through good -faith negotiation. In the event that the Parties are
unable to resolve the dispute through negotiation, CLIENT agrees that any claim or dispute arising
out of this Agreement or the Services, with the exception of Payment Disputes , shall be submitted
to non-bind i ng mediation . If the dispute cannot be resolved by mediation, the parties ag r ee to
submit their dispute to binding arbitration before a single arbitrator. The arbitration shall be held
in the state where the PROJECT is located and shall be conducted by and pursuant to the rules of
the Amer ican Arbitration Association . Except in the case of Payment Disputes , the parties agree
Kittelson & Associates, Inc. Boise, Idaho
Highway 55 Crossing Analysis
24525.0
Page : 6 afB
that so long as they are making good-faith efforts to resolve the dispute pursuant to the terms of
this Article , they shall continue to perform under this Agreement.
XII. GOVERNING LAW: Without regard to conflict of laws, the rights and liabilities of the parties under
this Agreement shall be governed by the laws of the State of Idaho.
XIII. TIME BAR TO LEGAL ACTION: All legal actions by either party against the other arising out of or in
any way connected with this Agreement or the services to be performed hereunder shall be barred
and under no circumstances shall any such legal action be initiated by either party after the earlier
of three (3) years or the State's applicable statute of limitations, both of which shall commence to
run on the last day Services are performed under this Agreement.
XIV. DIRECT EXPENSES: KITIELSON & ASSOCIATES , INC's Direct Expenses shall be those costs incurred
on or directly for the Project, including but not limited to necessary transportation costs including
mileage at the current IRS-allowed rates , meals and lodging. Reimbursement for automobiles,
meals and lodging, and any other expenses furnished by commercial sources shall be on the basis
of actual charges plus a 10% markup .
All communication fees including, but not limited to computer services, telephone, faxes, postage,
overnight deliveries, and in-house copies, printing, and binding charges shall be billed on the basis
of a per direct labor hour fee when furnished by KITIELSON & ASSOCIATES, INC.
XV. PROFESSIONAL SERVICES: KITIELSON & ASSOCIATES, INC. staff is defined as all permanent and
temporary employees, as well as any and all contract labor of KITIELSON & ASSOCIATES, INC. All
KITIELSON & ASSOCIATES, INC., staff time spent working on the Project will be billed as applicable
per Table 1.
XVI. COST ESTIMATE: Any cost estimates provided by KITIELSON & ASSOCIATES, INC. as part of the
Services will be on a basis of experience and judgment, but because it has no control ove r market
conditions or bidding procedures KITIELSON & ASSOCIATES, INC. cannot warrant that bids,
construction or other Project costs will not vary from these cost estimates.
XVII. PEER REVIEW: Any peer review report prepared by KITIELSON & ASSOCIATES INC. as part of the
Services herein merely represents its professional, unbiased opinion regarding the deliverable . This
opinion is based solely on KITIELSON & ASSOCIATES , INc.'S evaluation of the information provided
by CLIENT and should not be considered an exhaustive review, insurance against errors or
omissions in the deliverable, or advocacy of the intended project. CLIENT agrees that the purpose
and intent of KITIELSON & ASSOCIATES, INc.'S evaluation of the deliverable is to reduce the risk of
errors or omissions only and not to eliminate such risk. KITIELSON & ASSOCIATES, INC. offers no
warranty or guarantee with regard to any requested peer review performed under this
AGREEMENT.
XVIII. TERMINATION FOR CONVENIENCE: In addition to other rights of termination, either CLIENT or
KITIELSON & ASSOCIATES , INC. may terminate this Agreement for its convenience by giving 30
Kittelson & Asso ciates, In c. Baise, Idaho
Highway 55 Crossing Analysis
24525.0
Page: 7of8
days ' written notice to the other party. In such event, CLIENT shall forthwith pay KITIELSON &
ASSOCIATES, INC. in full for all work previously authorized and performed prior to effective date of
termination as well as all unavoidable expenses incurred prior to termination.
XIX. PAYMENT TO KITIELSON & ASSOCIATES, INC./REMEDIES FOR PAYMENT DISPUTES: Monthly
invoices will be issued by KITIELSON & ASSOCIATES , INC. for all services performed under the terms
of this Agreement, and reimbursement of direct expenses . A retainer, if applicable, will be required
in advance of start of services and will be credited to the final invoice(s) of Project. Invoices are due
and payable within 60 days of receipt . The CLIENT must notify the KITIELSON & ASSOCIATES, INC's
Project Manager or Project Accountant, in writing, within 30 days of receipt, of any disputed
charges in an invoice (the "Disputed Charges "). In the event CLIENT gives notice of any Disputed
Charges in an invoice, the undisputed invoiced amounts are still due and owing under the terms of
this Article . Interest at the rate of 1.5 percent per month, or alternatively at the highest monthly
rate allowable in the jurisdiction where the Services are being provided, whichever is higher, will
be charged on all past due amounts. Interest charges on past due amounts are in addition to the
fixed ceiling for the contract and are not counted in determining whether the fixed ceiling has been
reached. CLIENT'S failure to make payments to KITIELSON & ASSOCIATES, INC. within 90 days of
the issuance of an invoice shall constitute a material breach of this Agreement and KITIELSON &
ASSOCIATES, INC. shall have the option to withhold services until paid or terminate this Agreement.
Payment Disputes, including but not limited to disputes over (a) CLIENT 's non-payment or late
payment of any charge on an invoice; and (b) any charge on an invoice identified by CLIENT as a
Disputed Charge, are not subject to the Dispute Resolution and Arbitration provisions of Article VIII
of this Agreement, and KITIELSON & ASSOCIATES, INC. may avail itselfof any and all available legal
and equitable remedies to address such Payment Disputes. In the event KITIELSON & ASSOCIATES,
INC. is required to undertake collection actions, or otherwise incur any costs in connection with
the collection of amounts owing under a past-due invoice, all such costs shall be the responsibility
of CLIENT. KITIELSON & ASSOCIATES, INC. prefers that all payments be made through the
Automated Clearing House Network ("ACH "). The following bank account information is provided
below for this purpose:
Account Name : Kittelson & Associates, Inc .
Bank Name: Chase Bank
Account Number: 179118350
ABA Number: 325070760
Remittance Advice : apinvoice@kittelson.com
XX. PREVAILING PARTY ATIORNEY FEES: In the event of any litigation between the parties arising out
of this Agreement, including mandatory arbitration under Article VIII of this Agreement, the
prevailing party shall be entitled to recovery of its reasonable attorney's fees incurred in the
litigation.
XXI. ADDITIONAL INSURED: KITIELSON & ASSOCIATES , INC. shall cause its general liability insurers to
name CLIENT as an additional insured .
Kittelson & Associates, Inc. Boise, Idaho