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HomeMy WebLinkAboutPR 23736: AGREEMENT FOR PROFESSIONAL SERVICES WITH KITTELSON, LLC FOR FORENSIC TRANSPORTATION ENGINEERING SERVICES P.R. No. 23736 04/24/2024 ht RESOLUTION NO. A RESOLUTION RATIFYING AN AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE CITY OF PORT ARTHUR AND KITTELSON, LLC FOR FORENSIC TRANSPORTATION ENGINEERING SERVICES RELATED TO SASSINE AVENUE IN AN AMOUNT NOT TO EXCEED $40,000.00, FUNDING IS AVAILABLE IN PROFESSIONAL SERVICES ACCOUNT NO. 001-05-013-5420-00-10-000 WHEREAS, the City of Port Arthur has engaged the services of Kittleson, LLC for forensic transportation engineering services related to Sassine Avenue in connection with pending litigation, (i.e., Kirk Thomas v. City of Port Arthur); and WHEREAS, the Professional Services Agreement, executed by the City Manager on April 24, 2024 (attached hereto as Exhibit "A"), will provide valuable analyses and insights that will play a pivotal role in the legal proceeding. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR: Section 1. That the facts and opinions in the preamble are true and correct. Section 2. That the City Council of the City of Port Arthur hereby ratifies the professional services agreement with Kittelson, LLC, for forensic transportation engineering services related to Sassine Avenue for an amount not to exceed $40,000.00. Section 3. That a copy of the caption of the Resolution shall be spread upon the Minutes of the City Council. READ, ADOPTED AND APPROVED on this day of A.D., 2024, at a Meeting of the City Council of the City of Port Arthur, Texas, by the following vote: AYES: Mayor Councilmembers NOES: Thurman Bartie, Mayor ATTEST: Sherri Bellard, City Secretary APPROVED AS TO FORM: es M. Black, : erim City Attorney APPROVED FOR ADMINISTRATION: Ronald Burton, CPM, City Manager APPROVED FOR AVAILABILITY OF FUNDS: .6,3{1 Lynda " yn" Boswell,MA.,ICMA-CM Director of Finance Page 2 Exhibit "A" Page 3 STATE OF TEXAS § CITY OF PORT ARTHUR,TEXAS § AGREEMENT FOR PROFESSIONAL SERVICES COUNTY OF JEFFERSON § This Agreement for Professional Services("Agreement")is made by and between the City of Port Arthur,Texas,a Texas home-rule municipality located in Jefferson County,Texas("City"), and Kittelson, LLC ("Professional") (individually, each a "Party" and collectively, "Parties"), acting by and through the Parties' authorized representatives. Recitals: WHEREAS, City desires to engage the services of Professional as an independent contractor and not as an employee in accordance with the terms and conditions set forth in this Agreement; and WHEREAS, Professional desires to render professional services in accordance with the terms and conditions set forth in this Agreement. NOW, THEREFORE, in exchange for the mutual covenants set forth herein and other valuable consideration, the sufficiency and receipt of which is hereby acknowledged, the Parties agree as follows: Article I Employment of Professional Professional will perform as an independent contractor for all services under this Agreement to the prevailing professional standards consistent with the level of care and skill ordinarily exercised by members of Professional's profession, both public and private, currently practicing in the same locality under similar conditions including but not limited to the exercise of reasonable, informed judgments and prompt, timely action. If Professional is representing that it has special expertise in one or more areas to be utilized in the performance of this Agreement,then Professional agrees to perform those special expertise services to the appropriate local, regional and national professional standards. Article II Term 2.1 The term of this Agreement shall begin on the date of execution by all parties and the work will begin upon the issuance of the Notice to Proceed by the City (the "Effective Date") and shall remain in effect for a period of twelve (12) months or until services are complete, including the time necessary to develop the project deliverables, subject to change upon request or mutual agreement(s). 2.2 Professional may terminate this Agreement by giving thirty(30) days prior written notice to City. In the event of such termination by Professional, Professional shall be entitled to compensation for services satisfactorily completed in accordance with this Agreement prior to the date of such termination. 2.3 City may terminate this Agreement by giving ten (10) days prior written notice to Professional. In the event of such termination by City, Professional shall be entitled to compensation for services satisfactorily completed in accordance with this Agreement prior to the date of such termination. Upon receipt of such notice from City, Professional shall immediately terminate working on, placing orders or entering into contracts for supplies, assistance, facilities or materials in connection with this Agreement and shall proceed to promptly cancel all existing contracts insofar as they are related to this Agreement. 2.4 Upon notice of termination by Professional or City, Professional shall immediately surrender all project documents produced by Professional and its subcontractors up to and including the date on which termination notice was given. Article III Scope of Services 3.1 Professional shall perform the services specifically set forth in Exhibit A, attached hereto and incorporated herein by reference, entitled"Scope of Services." In case of conflict with the language of ExhibitA and the provisions of this Agreement, the provisions of this Agreement shall control. Any additional services require the prior approval of the City Council of the City. 3.2 The Parties acknowledge and agree that any and all opinions provided by Professional represent the best judgment of Professional. Article IV Schedule of Work 4.1 Professional agrees to commence services upon written direction from City and to complete the tasks set forth in Exhibit A, Scope of Services, in accordance with a work schedule established by City (the "Schedule"), which is attached hereto and incorporated as Exhibit A. 4.2 In the event Professional's performance of this Agreement is delayed or interfered with by acts of City or others, Professional may request an extension of time for the performance of same as hereinafter provided, and City shall determine whether to authorize any increase in fee or price, or to authorize damages or additional compensation as a consequence of such delays, within a reasonable time after receipt of Professional's request. 4.3 No allowance of any extension of time, for any cause whatsoever, shall be claimed or made by Professional, unless Professional shall have made written request upon City for such extension not later than five(5)business days after the occurrence of the cause serving as the basis for such extension request, and unless City and Professional have agreed in writing upon the allowance of such additional time. Page 2 of 11 City of Port Arthur, Texas Professional Services Agreement Rom. Article V Compensation and Method of Payment 5.1 City shall pay Professional for the services specifically as set forth in Exhibit A and in accordance with the Rate Schedule in an amount not to exceed$40,000.00 for said services. 5.2 Each month Professional shall submit to City an invoice supporting the amount for which payment is sought. Each invoice shall also state the percentage of work completed on the Project through the end of the then submitted billing period,the total of the current invoice amount, and a running total balance for the Project to date. 5.3 Within thirty (30) days of receipt of each such monthly invoice, City shall make monthly payments in the amount shown by Professional's approved monthly invoice and other documentation submitted. 5.4 Professional shall be solely responsible for the payment of all costs and expenses related to the services provided pursuant to this Agreement including, but not limited to, travel, copying and facsimile charges, reproduction charges, and telephone, interne, e-mail, and postage charges, except as set forth in Exhibit A. 5.5 Nothing contained in this Agreement shall require City to pay for any services that are unsatisfactory as determined by City or which is not performed in compliance with the terms of this Agreement, nor shall failure to withhold payment pursuant to the provisions of this section constitute a waiver of any right, at law or in equity, which City may have if Professional is in default, including the right to bring legal action for damages or for specific performance of this Agreement. Waiver of any default under this Agreement shall not be deemed a waiver of any subsequent default. Article VI Devotion of Time, Personnel, and Equipment 6.1 Professional shall devote such time as reasonably necessary for the satisfactory performance of the services under this Agreement. City reserves the right to revise or expand the scope of services after due approval by City as City may deem necessary, but in such event City shall pay Professional compensation for such services at mutually agreed upon charges or rates, (a copy of the Rate Schedule is attached hereto as Exhibit A),and within the time schedule prescribed by City, and without decreasing the effectiveness of the performance of services required under this Agreement. In any event, when Professional is directed to revise or expand the scope of services under this Agreement, Professional shall provide City a written proposal for the entire costs involved in performing such additional services. Prior to Professional undertaking any revised or expanded services as directed by City under this Agreement, City must authorize in writing the nature and scope of the services and accept the method and amount of compensation and the time involved in all phases of the Project. Page 3 of 11 City of Port Arthur, Texas Professional Services Agreement 6.2 It is expressly understood and agreed to by Professional that any compensation not specified in this Agreement may require approval by the City Council of the City of Port Arthur and may be subject to current budget year limitations. 6.3 To the extent reasonably necessary for Professional to perform the services under this Agreement, Professional shall be authorized to engage the services of any agents, assistants, persons, or corporations that Professional may deem proper to aid or assist in the performance of the services under this Agreement. The cost of such personnel and assistance shall be borne exclusively by Professional. 6.4 Professional shall furnish the facilities,equipment,telephones,facsimile machines, email facilities, and personnel necessary to perform the services required under this Agreement unless otherwise provided herein. Article VII Relationship of Parties 7.1 It is understood and agreed by and between the Parties that in satisfying the conditions and requirements of this Agreement, Professional is acting as an independent contractor, and City assumes no responsibility or liability to any third party in connection with the services provided by Professional under this Agreement. All services to be performed by Professional pursuant to this Agreement shall be in the capacity of an independent contractor, and not as an agent, servant, representative, or employee of City. Professional shall supervise the performance of its services and shall be entitled to control the manner, means and methods by which Professional's services are to be performed, subject to the terms of this Agreement. As such, City shall not train Professional, require Professional to complete regular oral or written reports, require Professional to devote his full-time services to City, or dictate Professional's sequence of work or location at which Professional performs Professional's work, except as may be set forth in Exhibit A. Article VIII Insurance 8.1 Before commencing work, Professional shall, at its own expense, procure, pay for and maintain during the term of this Agreement the following insurance written by companies approved by the state of Texas and acceptable to City. Professional shall furnish to the City Manager certificates of insurance executed by the insurer or its authorized agent stating coverages, limits, expiration dates and compliance with all applicable required provisions. Certificates shall reference the project/contract number and be addressed as follows: City of Port Arthur, Texas Attention: Ron Burton, City Manager 444 4th Street Port Arthur, Texas 77640-1089 Page 4 of 11 City of Port Arthur, Texas Professional Services Agreement A. Commercial General Liability insurance, including, but not limited to Premises/Operations, Personal & Advertising Injury, Products/Completed Operations, Independent Contractors and Contractual Liability, with minimum combined single limits of $500,000 per occurrence, $500,000 Products/Completed Operations Aggregate, and $500,000 general aggregate. Coverage must be written on an occurrence form. The General Aggregate shall apply on a per project basis. B. Workers' Compensation insurance with statutory limits; and Employers' Liability coverage with minimum limits for bodily injury: 1) by accident, $100,000 each accident, and 2) by disease, $100,000 per employee with a per policy aggregate of $500,000. C. Business Automobile Liability insurance covering owned, hired and non- owned vehicles, with a minimum combined bodily injury and property damage limit of $500,000 per occurrence. D. Professional Liability Insurance to provide coverage against any claim which the Professional and all professionals engaged or employed by the Professional become legally obligated to pay as damages arising out of the performance of professional services caused by error, omission or negligent act with minimum limits of$1,000,000 per claim, $1,000,000 annual aggregate NOTE:If the insurance is written on a claims-made form, coverage shall be continuous(by renewal or extended reporting period) for not less than thirty-six (36) months following completion of this Agreement and acceptance by City. 8.2 With reference to the foregoing required insurance, Professional shall endorse applicable insurance policies as follows: A. A waiver of subrogation in favor of City, its officials, employees, and officers shall be contained in the Workers' Compensation insurance policy. B. The City, its officials, employees and officers shall be named as additional insureds on the Commercial General Liability policy, by using endorsement CG2026 or broader. C. All insurance policies shall be endorsed to the effect that City will receive at least thirty (30) days notice prior to cancellation, non-renewal, termination, or material change of the policies. 8.3 All insurance shall be purchased from an insurance company that meets a financial rating of B+or better as assigned by A.M. Best Company or equivalent. Page 5 of 11 City of Port Arthur, Texas Professional Services Agreement Article IX Right to Inspect Records 9.1 Professional agrees that City shall have access to and the right to examine any directly pertinent books, documents, papers and records of Professional involving transactions relating to this Agreement. Professional agrees that City shall have access during normal working hours to all necessary Professional facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. City shall give Professional reasonable advance notice of intended audits. 9.2 Professional further agrees to include in subcontract(s), if any, a provision that any subcontractor agrees that City shall have access to and the right to examine any directly pertinent books, documents, papers and records of such subcontractor involving transactions related to the subcontract, and further, that City shall have access during normal working hours to all such subcontractor facilities and shall be provided adequate and appropriate work space, in order to conduct audits in compliance with the provisions of this section. City shall give any such subcontractor reasonable advance notice of intended audits. Article X Miscellaneous 10.1 Entire Agreement. This Agreement and any and all Exhibits attached hereto constitutes the sole and only agreement between the Parties and supersedes any prior or contemporaneous understandings,written agreements or oral agreements between the Parties with respect to the subject matter of this Agreement. 10.2 Authorization. Each Party represents that it has full capacity and authority to grant all rights and assume all obligations granted and assumed under this Agreement. 10.3 Assignment. Professional may not assign this Agreement in whole or in part without the prior written consent of City. In the event of an assignment by Professional to which the City has consented, the assignee shall agree in writing with the City to personally assume, perform, and be bound by all the covenants and obligations contained in this Agreement. 10.4 Successors and Assigns. Subject to the provisions regarding assignment, this Agreement shall be binding on and inure to the benefit of the Parties and their respective heirs, executors, administrators, legal representatives, successors and assigns. 10.5 Governing Law and Exclusive Venue. The laws of the State of Texas shall govern this Agreement, and exclusive venue for any legal action concerning this Agreement shall be in a District Court with appropriate jurisdiction in Jefferson County, Texas. The Parties agree to submit to the personal and subject matter jurisdiction of said court. 10.6 Amendments. This Agreement may be amended only by the mutual written agreement of the Parties. Page 6 of 11 City of Port Arthur, Texas Professional Services Agreement 10.7 Severability. In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision in this Agreement,and this Agreement shall be construed as if such invalid,illegal, or unenforceable provision had never been contained in this Agreement. 10.8 Survival of Covenants and Terms. Any of the representations, warranties, covenants,and obligations of the Parties,as well as any rights and benefits of the Parties,pertaining to a period of time following the termination of this Agreement shall survive termination, including, but not limited to, Section 3.3, Article X, and, in particular, Sections 10.13 and 10.14. 10.9 Recitals. The recitals to this Agreement are incorporated herein. 10.10 Notice. Anynotice required orpermitted to be delivered hereunder maybe sent q by first class mail, overnight courier or by confirmed telefax or facsimile to the address specified below, or to such other Party or address as either Party may designate in writing, and shall be deemed received three (3) days after delivery set forth herein: If intended for City: City of Port Arthur, Texas 444 4th Street Port Arthur, Texas 77640 Attn: Ron Burton, City Manager Copy to: City of Port Arthur, Texas 444 4th Street Port Arthur, Texas 77640 Attn: James M. Black, Interim City Attorney If intended for Professional: Kittelson, LLC 1008 Woodcreek Drive College Station, Texas 77845 Attn: Mike Mclnturff, PE, PTOE 10.11 Counterparts. This Agreement may be executed by the Parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts shall together constitute one and the same instrument. Each counterpart may consist of any number of copies hereof each signed by less than all, but together signed by all of, the Parties hereto. 10.12 Exhibits. The exhibits attached hereto are incorporated herein and made a part hereof for all purposes. Page 7 of 11 City of Port Arthur, Texas Professional Services Agreement 10.13 Professional's Liability. Acceptance of the Project Documents by City shall not constitute nor be deemed a release of the responsibility and liability of Professional,its employees, associates, agents or subcontractors for the accuracy and competency of their designs, working drawings, specifications or other documents and work; nor shall such acceptance be deemed an assumption of responsibility by City for any defect in the Project Documents or other documents and work prepared by Professional, its employees, associates, agents or sub-consultants. 10.14 Indemnification. PROFESSIONAL AGREES TO INDEMNIFY AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL LIABILITIES, DAMAGES, CLAIMS,SUITS,COSTS(INCLUDING COURT COSTS,REASONABLE ATTORNEY'S FEES AND COSTS OF INVESTIGATION)AND ACTIONS BY REASON OF INJURY TO OR DEATH OF ANY PERSON OR DAMAGE TO OR LOSS OF PROPERTY TO THE EXTENT CAUSED BY PROFESSIONAL'S NEGLIGENT PERFORMANCE OF SERVICES UNDER THIS AGREEMENT OR BY REASON OF ANY ACT OR OMISSION ON THE PART OF PROFESSIONAL, ITS OFFICERS, DIRECTORS, SERVANTS, AGENTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, SUCCESSORS OR PERMITTED ASSIGNS (EXCEPT WHEN SUCH LIABILITY, CLAIMS, SUITS, COSTS, INJURIES, DEATHS OR DAMAGES ARISE FROM OR ARE ATTRIBUTED TO THE NEGLIGENCE OF THE CITY). IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, THE PROFESSIONAL, ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR PROCEEDINGS AT PROFESSIONAL'S EXPENSE, BY OR THROUGH ATTORNEYS REASONABLY SATISFACTORY TO CITY. PROFESSIONAL'S OBLIGATIONS UNDER THIS SECTION SHALL NOT BE LIMITED TO THE LIMITS OF COVERAGE OF INSURANCE MAINTAINED OR REQUIRED TO BE MAINTAINED BY PROFESSIONAL UNDER THIS AGREEMENT. IF THIS AGREEMENT IS A CONTRACT FOR ENGINEERING OR ARCHITECTURAL SERVICES, THEN THIS SECTION IS LIMITED BY, AND TO BE READ AS BEING IN COMPLIANCE WITH, THE INDEMNITY SPECIFIED IN § 271.904 OF THE TEXAS LOCAL GOVERNMENT CODE, AS AMENDED. THIS SECTION SHALL SURVIVE TERMINATION OF THIS AGREEMENT 10.15 Conflicts of Interests. Professional represents that no official or employee of City has any direct or indirect pecuniary interest in this Agreement. Any misrepresentation by Professional under this section shall be grounds for termination of this Agreement and shall be grounds for recovery of any loss, cost, expense or damage incurred by City as a result of such misrepresentation. 10.16 Default. If at any time during the term of this Agreement, Professional shall fail to commence the services in accordance with the provisions of this Agreement or fail to diligently provide services in an efficient, timely and careful manner and in strict accordance with the provisions of this Agreement or fail to use an adequate number or quality of personnel to complete the services or fail to perform any of Professional's obligations under this Agreement, then City shall have the right, if Professional shall not cure any such default after thirty (30) days written notice thereof, to terminate this Agreement. Any such act by City shall not be deemed a waiver Page 8 of 11 City of Port Arthur, Texas Professional Services Agreement of any other right or remedy of City. If after exercising any such remedy due to Professional's nonperformance under this Agreement, the cost to City to complete the services to be performed under this Agreement is in excess of that part of the contract sum which as not theretofore been paid to Professional hereunder, Professional shall be liable for and shall reimburse City for such excess costs. 10.17 Confidential Information. Professional hereby acknowledges and agrees that its representatives may have access to or otherwise receive information during the furtherance of Professional's obligations in accordance with this Agreement, which is of a confidential, non- public or proprietary nature. Professional shall treat any such information received in full confidence and will not disclose or appropriate such Confidential Information for Professional's own use or the use of any third party at any time during or subsequent to this Agreement. As used herein, "Confidential Information"means all oral and written information concerning the City, its affiliates and subsidiaries, and all oral and written information concerning City or its activities, that is of a non-public,proprietary or confidential nature including,without limitation,information pertaining to customer lists, services, methods, processes and operating procedures, together with all analyses,compilations,studies or other documents,whether prepared by Professional or others, which contain or otherwise reflect such information. The term "Confidential Information" shall not include such information that is or becomes generally available to the public other than as a result of disclosure to Professional, or is required to be disclosed by a governmental authority under applicable law. 10.18 Remedies. No right or remedy granted or reserved to the Parties is exclusive of any other right or remedy herein by law or equity provided or permitted; but each right or remedy shall be cumulative of every other right or remedy given hereunder. No covenant or condition of this Agreement may be waived without written consent of the Parties. Forbearance or indulgence by either Party shall not constitute a waiver of any covenant or condition to be performed pursuant to this Agreement. 10.19 No Third Party Beneficiary. For purposes of this Agreement, including the intended operation and effect of this Agreement, the Parties specifically agree and contract that: (1) this Agreement only affects matters between the Parties to this Agreement, and is in no way intended by the Parties to benefit or otherwise affect any third person or entity notwithstanding the fact that such third person or entity may be in contractual relationship with City or Professional or both;and(2)the terms of this Agreement are not intended to release,either by contract or operation of law, any third person or entity from obligations owing by them to either City or Professional. [The Remainder of this Page Intentionally Left Blank] Page 9 of 11 City of Port Arthur, Texas Professional Services Agreement EXECUTED this day of , 2024. CITY: CITY OF PORT ARTHUR,TEXAS, A Texas home-rule w i 1'pality, By: Ron Burto , i• anager ATTEST: Sherri Bellard, City ecretary APPROVED AS TO FORM: '41t42 J. . Black, Interim City Attorney EXECUTED this day of , 2024. PROFESSIONAL: Kittelson, LLC By: , (Title) Page 10 of 11 City of Port Arthur, Texas Professional Services Agreement Exhibit A Scope of Services/ Schedule Page 11 of 11 City of Port Arthur, Texas Professional Services Agreement RE:City of Port Arthur v Kirk Thomas Case#C24076 Page 1 of 6 SERVICES AGREEMENT PART A - TERMS AND CONDITIONS 1. GENERAL: The terms and conditions set forth herein shall govern all services subsequently performed on behalf of City of Port Arthur ("CLIENT"), unless changed by a written agreement signed by KITTELSON LLC. In case any one or more of the provisions contained in this Services Agreement shall be held illegal or unenforceable for any reason, the enforceability of the remaining provisions contained herein shall not be impaired thereby. 2. NATURE OF SERVICES: KITTELSON LLC shall provide professional services as a technical consultant for the CLIENT relative to City of Port Arthur v Kirk Thomas ("CASE"). When mutually agreed and to the extent possible, CLIENT and KITTELSON LLC may define the scope of the work to be performed prior to the commencement of any billable hours. KITTELSON LLC agrees to serve as an expert witness in the event that the CLIENT discloses KITTELSON LLC as an Expert Witness. (As used in this Services Agreement, "discloses" refers to the court procedure of formal exchange of the identities of the parties' expert witnesses.) CLIENT acknowledges and agrees that the findings and opinions of the KITTELSON LLC may or may not be favorable to the CLIENT relative to the court case identified herein. CLIENT further agrees that payment of compensation, as described in Part B —Fee Schedule and Payment Terms, shall not be subject to resolution of the court case in the favor of the CLIENT. 3. DATA TO BE FURNISHED: All information, data, reports, records, and maps with respect to the case which are available to CLIENT and which CLIENT deems reasonably necessary for the performance of work set forth herein, shall be furnished to KITTELSON LLC without charge by CLIENT. 4. PERSONNEL: KITTELSON LLC agrees that it will employ, at its own expense, all personnel necessary to perform the services required herein, and in no event shall such personnel be the employees of CLIENT. All of the services required hereunder shall be performed by KI1"1'ELSON LLC and all personnel engaged therein shall be fully qualified under applicable federal, state and local law to undertake the work performed by them. The Lead Expert identified herein shall oversee and direct all work performed by KITTELSON LLC. The Lead Expert, at their sole discretion, may use other KITTELSON LLC personnel for technical or administrative support. In the event the CLIENT discloses KITTELSON LLC as an Expert Witness, the Lead Expert shall be the disclosed personnel,unless otherwise agreed in writing. KITTELSON LLC assumes full and sole responsibility for the payment of all compensation and expenses of such personnel and for all state and federal income tax, unemployment insurance, Social Security, disability insurance and other applicable withholdings. Lead Expert: Mike Mclnturff,PE, PTOE Kittelson LLC TX Firm Registration No.F-16823 RE:City of Port Arthur v Kirk Thomas Case#C24076 Page 2 of 6 5. LIMITATION OF LIABILITY: CLIENT agrees that in recognition of the relative risks and benefits of this case, KITTELSON LLC'S aggregate joint, several and individual liability of any kind shall be limited to an amount no greater than the extent caused by the negligence or willful misconduct of KITTELSON LLC, including its individual employees, officers, directors or shareholders, special consultants or agents. This provision shall survive the termination or expiration of this Services Agreement. 6. LIMITATION OF REMEDY: CLIENT covenants that it will not, under any circumstances, bring a lawsuit or claim against KITTELSON LLC'S individual employees,officers,directors or shareholders, special consultants or agents and that CLIENT'S sole remedy shall be against KITTELSON LLC. 7. DISCLOSURE: KITTELSON &ASSOCIATES, INC. &KITTELSON LLC is required to disclose any outside activities or interests, including ownership interests or participation in the development of prior cases, studies or plans that conflict or may conflict with the best interests of CLIENT. Prompt disclosure is required under this paragraph if the activity or interest is related, directly or indirectly, to any activity that KITTELSON & ASSOCIATES, INC. & KITTELSON LLC may be involved with on behalf of CLIENT. 8. CONFIDENTIALITY:KITTELSON LLC recognizes that CLIENT has and may provide the following types of information to KITTELSON LLC, including but not limited to:case material, legalstrategies, future plans, business affairs, process information, trade secrets, and other proprietary information (collectively "Information")which are valuable,special and unique assets of CLIENT and need to be protected from improper disclosure. KITTELSON LLC agrees that it will not at any time or in any manner, either directly or indirectly, use any Information for KITTELSON LLC's ownbenefit, or divulge, disclose, or communicate in any manner any information to any third party without the prior written consent of CLIENT.KITTELSON LLC will protect the Information and treat it as strictly confidential. 9. DISPUTE RESOLUTION/VENUE AND CHOICE OF LAW: After first attempting to resolve disputes through good faith negotiations,CLIENT agrees that any claim or dispute arising out of this Services Agreement for any services performed by KITTELSON LLC, 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 KITTELSON LLC ("Payment Disputes"), for which the remedy will be in accordance with Part B of this Services Agreement, shall be submitted to non-binding mediation. If the dispute cannot be resolved by mediation, the parties agree to submit their dispute to binding arbitration before a single arbitrator.The arbitration shall be held in Jefferson County,Texas and shall conform substantially with the rules of the American Arbitration Association. The parties shall endeavor to mutually agree upon a neutral and unbiased arbitrator. If the parties are unable to agree on an arbitrator within 15 days of the filing of a demand for arbitration, the presiding judge of the Jefferson County court having jurisdiction in such matters shall designate an arbitrator.KITTELSON LLC agrees that so long as the parties are making good-faith efforts to resolve their dispute, it shall continue diligently with the performance of services. Kittelson LLC TX Firm Registration No.F-16823 RE:City of Port Arthur v Kirk Thomas Case#C24076 Page 3 of 6 The rights and liabilities of the parties to this Services Agreement shall be governed by the laws of the State of Texas. 10. PROFESSIONAL SERVICES:The manner in which the services are to be performed,and the specific hours to be worked by KITTELSON LLC shall be determined by KITTELSON LLC.CLIENT will rely on KITTELSON LLC to work as many hours as may reasonably be necessary to fulfill KITTELSON LLC's obligations under this Services Agreement. KITTELSON LLC staff is defined asall permanent and temporary employees, as well as any and all contract labor of KITTELSON LLC. 11. TERMINATION FOR CONVENIENCE: In addition to other rights of termination, either CLIENT or KITTELSON LLC may terminate this Services Agreement for its convenience by giving written notice to the other party at any time. In such event, the terms set forth herein shall remain in effect until all obligations outlined herein are fulfilled; KITTELSON LLC is paid 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. 12. FEE SCHEDULE AND PAYMENT TERMS: See Part B-Fee Schedule and Payment Terms. 13. PROFESSIONAL STANDARDS: KITTELSON LLC shall only be responsible for performing the services to the level of competency currently maintained by other practicing professional engineers performing the same type of services in CLIENT'S community, for the professional and technical soundness, accuracy, and adequacy of all technical analysis, professional opinions, written testimony,oral testimony,demonstrative exhibits and other work and materials furnished under this Services Agreement. KITTELSON LLC makes no other warranty,express or implied. 14. ENTIRE AGREEMENT: This Services Agreement,including Part B-Fee Schedule and Payment Terms, contains the entire agreement of the parties and there shall be no other promises or conditions in any other agreement, whether oral or written. This Services Agreement supersedes any prior written or oral agreements between the parties. Kittelson LLC TX Firm Registration No.F-16823 RE:City of Port Arthur v Kirk Thomas Case#C24076 Page 4 of 6 15. AUTHORIZATION TO PROCEED: Signing this Services Agreement shall constitute agreement with all terms and conditions herein and shall be authorization by CLIENT for KITTELSON LLC to proceed with the work. Signing this Services Agreement shall also be construed as authorization by CLIENT for K!TI bLSON LLC to invoice CLIENT in accordance with Part B-Fee Schedule and Payment Terms. Accepted for: Approved for: Kittelson LLC City of Port thur Signature Signature \ot1Ca..V c B 11- 1 Print Name Print Name C.AN Ranaler Title Title Date Date Kittelson LLC TX Firm Registration No.F-16823 RE:City of Port Arthur v Kirk Thomas Case#C24076 Page 5 of 6 PART B - FEE SCHEDULE AND PAYMENT TERMS 1. CONSULTING: KITTELSON LLC consulting time, includes, but is not limited to, travel time, research, analysis, testing, inspection, review of materials, interviews, consultations, telephone conferences, report preparation, demonstrative evidence preparation, reading and correction of deposition transcript, review and signing of affidavits and similar documents, time being deposed, courtroom testimony and waiting time.Any time related to the case which is beyond the scope of an initial free consultation will be considered billable time. All consulting time will be billed on a time and materials basis at the standard KITTELSON LLC hourly bill rates for litigation consulting professional services plus expenses. It is acknowledged that KITTELSON LLC will not be deposed or provide expert testimony or provide written declarations if any pending invoices more than 30 days past due and/or any retainer fees have not been paid prior to said depositions, court appearances,or other legal testimony. 2. DIRECT EXPENSES: KITTELSON LLC's Direct Expenses shall be those costs incurred on or directly for the CLIENT'S legal matter, including but not limited to necessary transportation costs including airfare, lodging, meals, car rental, mileage, photography, audio/visual aids, materials, electronic research fees,laboratory fees,specialised commercial services and out-of-house copies,printing,and binding charges. Estimates of expenses may be provided upon request. 3. TERMS: a) All invoices are due when rendered. b) Rates are subject to change. c) The CLIENT must notify KITTELSON LLC, 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 Services Agreement.KITTELSON LLC has the option to charge 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.CLIENT'S failure to make payments to KITTELSON LLC within 90 days of the issuance of an invoice shall constitute a material breach of this Services Agreement and KITTELSON LLC shall have the option to withhold services until paid or terminate this Services 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 Section 9 of this Services Agreement, and KITTELSON LLC may avail itself of any and all available legal and equitable remedies to address such Payment Disputes. In the event KITTELSON LLC 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. Kittelson LLC TX Firm Registration No.F 16823 RE:City of Port Arthur v Kirk Thomas Case#C24076 Page 6 of 6 1 KITTELSON LLC FORENSIC TRANSPORTATION ENGINEERING 1008 WOODCREEK DR..COLLEGE STATION,TX 77845 I KITTE.LSONLLC.COM P(979)693 5800 BILLING RATE SCHEDULE Effective January 1, 2024 The current billing rates for Kittelson LLC staff are as follows and are subject to change: Professional Services Hourly Rates Technical Services Hourly Rates Principal/Expert Witness* $250-$425 Associate Technician $200-$230 Crash Reconstruction Expert* $250-$375 Motor Carrier Consulting $150-$250 Associate Engineer $260-$295 Senior Technician $175-$195 Senior Engineer $210-$255 Technician II $155-$175 Engineer $190-$210 Technician I $135-$155 Transportation Analyst $170-$185 Senior Office Administrator $115-$140 Deposition Testimony—up to two hours** $1,000 Equipment(per vehicle or site inspected) 3D Laser Scanner $350 Drone $500 HVEDR/FLA(heavy truck download) $1,250 Bosch CDR(passenger vehicle $450 download) Specialty Passenger Vehicle Download $950 (Hyundai, Kia,Tesla,Toyota Techstream) Other Expenses Initial File Setup $175 Travel &Outside Expenses Cost plus a 10%administrative fee Mileage Standard IRS rate *The hourly rate for expert witnesses will be based on the expert's area of expertise. **$1,000 for the first two hours or portions thereof. Standard hourly rate for each additional hour of testimony. Kittelson LLC TX Firm Registration No.F-16823 13 KITTELSON LLC FORENSIC TRANSPORTATION ENGINEERING JOHN MICHAEL MCINTURFF, P.E., PTOE PRINCIPAL ENGINEER FORMAL EDUCATION • M.E., Civil Engineering, Texas A&M University, 1974 • B.S., Civil Engineering,Texas A&M University, 1973 PROFESSIONAL STATUS • Licensed Professional Engineer, State of Texas, License No. 42461 • Licensed Professional Engineer, State of Louisiana, License No. PE.0047080 • Certified Professional Traffic Operations Engineer, Certification No. 920 • TxDOT Precertification Categories: 1.2.1, 1.3.1, 1.4.1, 3.1.1, 7.1.1, 7.2.1, 7.3.1, 7.4.1, 7.5.1, 8.1.1, 8.3.1, 8.4.1, 8.5.1 PROFESSIONAL ASSOCIATION • Institute of Transportation Engineers, Texas District, Brazos Valley Section PROFESSIONAL EXPERIENCE • 1971-1972 Engineering Aide, Texas Highway Department • 1974-1977 Engineering Assistant, State Department of Highways and Public Transportation,Austin, Texas • 1977 Traffic Safety Coordinator, Southwest Texas State University, San Marcos, Texas • 1977-1979 Traffic Operations Engineer, City of Austin, Texas • 1979-1980 Area Traffic Engineer, College of the Mainland, Texas City, Texas • 1980-1984 Director of Traffic and Transportation Department, City of Pasadena, Texas • 1984-1990 Vice President, Traffic Engineers, Inc., Austin,Texas • 1990-2006 President, WHM Transportation Engineering Consultants, Inc., Austin, Texas • 2006-2016 Vice President(Retired), HDR Engineering, Inc., College Station,Texas • 2017-Present Principal Engineer, Kittelson LLC, College Station,Texas CONTINUING EDUCATION INSTRUCTOR, GUEST LECTURER AND MENTOR • 1979-1980 Certified Instructor for Motorcycle Safety Foundation Basic Motorcycle Rider and Safety Course, College of the Mainland, Texas City, Texas • 1980-1985 Certified Instructor for National Safety Council Defensive Driving Course Joe Lartigue Insurance Agency, Pasadena, Texas • 1992-1996 Adjunct Instructor for Highway Capacity and Risk Management, Texas Engineering Extension Service, Texas A&M University • 2011 Mentor for Career Skills Leadership Program HDR Engineering, Inc., Austin, Texas • 2012-Present Guest Lecturer and Mentor for Civil Engineering Undergraduate and Graduate Classes, Texas A&M University TRAFFIC ENGINEERING DESIGN,ANALYSIS AND OPERATIONS EXPERIENCE Completed project work for various private entities,Texas Department of Transportation,Montana Department of Transportation, Utah Department of Transportation, State of Texas General Services Department, Central Texas Regional Mobility Authority, Capital Metro in Austin, the University of Texas in Austin, Austin Community College, Southwestern University in Georgetown, Houston Metropolitan Transit Authority, the Cities of Austin, Belton, Bryan, Cedar Park, College Station, Conroe, Corpus Christi, Fredericksburg, Galveston, Houston, Killeen, Laredo, League City,Pearland, Round Rock, San Angelo, San Antonio, San Marcos, Sugar Land, Texas City, Temple and Waco, Texas, and the Counties of Bastrop, Fort Bend, Galveston, Harris, Travis and Williamson, Texas for improvement of arterial and highway congestion through improved traffic signal operations, geometric design,traffic control modifications, and site access design and circulation studies. EXPERT WITNESS EXPERIENCE As a qualified expert in the areas of highway design,traffic engineering and site access design and circulation, assisted attorneys in private practice and government attorneys for eminent domain, administrative permit approvals and other legal/legislative matters. Provided expert witness services for the Texas Attorney General's office and TxDOT in the Austin, Brownwood, Dallas, Houston, Lufkin, Pharr, San Antonio and Yoakum Districts, the City of Houston, Fort Bend and Harris Counties and Capital Metro in Austin, Eanes Independent School District in West Lake Hills, North Tarrant Express Mobility Partners, as well as several private property owners. These services included work on more than 100 projects of the following types: landfills, solid waste transfer facilities, sand mining operations, construction and maintenance traffic control, and property condemnation for highway,public school and transit facility improvements. John Michael Mclnturff,P.E.PTOE 2 April 2024