HomeMy WebLinkAboutContract 50692-A1 g2 PM
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InJAN a 2019 "' AMENDMENT NO. 1 TO AGREEMENT
14C1N WORTM Cb
pFFORS '� STANDARD AGREEMENT FOR PROFESSIONAL SERVICES
c� O�jy SECRETARY �
rE9, p��s FIRE STATION 43
STATE OF TEXAS
CITY SECRETARY CONTRACT NO. Q— t
COUNTY OF TARRANT
WHEREAS, The City of Fort Worth and RPGA Design Group Inc., (Consultant) made
and entered into City Secretary Contract No. 50692 (The Contract) which was
authorized by the City Council by M&C C-28651, the 3rd day of April, 2018, for Fire
Station 43 + Utility Extensions, Linkmeadow Drive & Interstate Highway 30 /Fort Worth,
Texas; and
WHEREAS, further amendment is necessary to reimburse the Consultant as part of the
design services agreement for additional design services for FS #43 — City Annexation
services and Geotechnical services— rev 1.
NOW THEREFORE, City and Consultant, acting herein by and through their duly
authorized representatives, enter into the following agreement which amends the
Contract:
1.
Article I —Scope of Services, Paragraph (3) shall be added to read as follows:
(3) Provide additional design services for the design and detailing of City
Annexation services and Geotechnical services. The cost of this additional
service is $5,170.00 plus $0.00 in reimbursable expenses. The scope of services
is described more fully in RPGA Design Group, Inc. Letter dated December 10,
2018, subject: "FS #43 — City Annexation services and Geotechnical services —
rev 1".
2.
Article II —Compensation, first paragraph, is amended as follows:
"Consultant shall be compensated in accordance with the Fee Schedule shown
in Attachment "A". Payment shall be considered full compensation for all labor,
materials, supplies, and equipment necessary to complete the services
described in Attachment "A". However the total fee paid by the City shall not
exceed a total of$342,370.00 unless the City and the Consultant mutually agree
upon a fee amount for additional services and amend this Agreement
accordingly." rFT.
City of FortWonn,Texas IArL RECORD
StandRevisrd Agr: ment for rofessional Services AMENDMENT SECRETARYPage 1 ore ORTH,TX
3.
All other provisions of this Contract which are not expressly amended herein shall
remain in full force and effect.
EXECUTED this the day of 2C�ji, in Fort Worth, Tarrant County,
Texas.
RPGA Design nc. APPROVED:
By: By:
Javier Jesus J. Chapa
Princi I Assistant City Manager
AByP: PROVA M
ENDED: BRyE:
CORD
E
, er nab fMterimbirector ay/j
J. Kayser
pert
Ma g ment Department City
Secretary
APPROVED AS TO FORM AND LEGALITY: M&C Not Required
Contract Authorization
By:
An6. 9�'tr-ong
C?
Assistant ttorney
Contract Compliance Manager:
By signing I acknowledge that I am the
person responsible for the monitoring and
administration of this contract, including
ensuring all performance and reporting
re9tirements. OF
I rdy� ew- G4ey
Brian R. Glass, AIA
Architectural Services Manager
A,RECORD
City of Fort VVorth,Tom
Standard Agreement for Professional Services AMENDMENT SECRETARY
Revision Dale:811WO16
Page 2 of 2 F '41ORTH,TX
2
' ' R P G A
DESIGN GROUP, INC.
December 10, 2018
Ronald Clements, Architect
Property Management Department
City of Fort Worth
401 West 131h Street
Fort Worth, Texas 76102
RE: FS#43—City Annexation services and Geotechnical services—rev1
Mr. Clements:
In order that we might reach a clear understanding, please accept this as our proposal to provide
professional City Annexation services and Geotechnical services—rev1 for Fire Station 43. We
submit the following for your consideration and approval.
1) General: RPGA Design Group, Inc., as summarized below, will work with Pacheco Koch and
Alpha Testing to provide the following Annexation and additional Geotechnical Investigation
services. A detailed description of these services is included in the attached proposals from
Pacheco Koch; PK No.: 4012-17.506, dated November 30, 2018 (revised) and Alpha Testing;
Alpha Proposal No. 63517-rev1, dated November 27,2018.
1) Summary of Scope of Services:
a) City Annexation Exhibits
b) Geotechnical Services—rev1
AnnexationServices ....................................................................................................$ 4,000.00
Geotechnical Services—rev1 ($4,900.00-$4,200 previously approved) .................... $ 700.00
Architectural Coordination and Processing................................................................... $ 470.00
TOTAL $6,170.00
If you have any questions or if you need additional information to review and approve this proposal
please contact me at your earliest convenience.
incer ly,
Javier Q ucio
RPGA Design Group, Inc.
101 S.Jennings Avenue,Suite#100 Fort Worth,Texas 76104 (817)332-9477 FAX(817)332-9487 (888)TRY40AGA
www.rpgaarchitects.com
J4 Pacheco Koch
November 30, 2018 (Revised)
PK No.: 4012-17.506
Mr. Javier Q. Lucio, NCARB,AIA
Principal
RPGA DESIGN GROUP,INC.
101 S.Jennings Avenue,Suite 100
Fort Worth,Texas 76104
Re: Additional Services
CITY OF FORT WORTH FIRE STATION 43-ALTERNATE LOCATION
City Annexation Exhibit
Fort Worth, Tarrant County, Texas
MAPSCO:F71-P
Dear Mr. Lucio:
As you are aware, Pacheco Koch Consulting Engineers, Inc. has been requested to provide
services on the referenced site that we believe are outside the Scope of Work of our revised
proposal dated November 20,2017,and subsequent additional services proposals as applicable.
These services are as follows:
CITY ANNEXATION EXHIBITS:Based on a boundary survey previously prepared as part of this
project, Pacheco Koch will prepare two(2) annexation exhibits of the property under the
direct supervision of a Registered Professional Land Surveyor. The exhibits are for (1) the
Fire Station site and (2)the adjoining street. The exhibits shall be prepared in accordance
with current City of Fort Worth specifications and guidelines.
Included in this item:
■ Two exhibits with metes&bounds of the area to be annexed into City of Fort Worth
■ Submittal and attendance of meetings as required for approval of the annexation
Not included in this item:
■ Monumentation of boundary corners
STATE & LOCAL SALES TAX: As required by state law, all professional services related to
boundary determination/preparation are subject to state and local sales tax. As this item
is normally part of reimbursable expenses this has been included as part of our Scope of
Services.
6100 Western Place ■ Suite 1001 ■ Fort Worth,TX 76107-4654 ■ T:817.412.7155 ■ F:817.412.7156 ■ pkce.com
Mr.Javier Q.Lucio, NCARB,AIA
November 30, 2018 (Revised)
Page 2
We propose that the total fee of our current contract be increased by a lump sum to cover
personnel expenses involved in these changes as follows:
CITY ANNEXATION EXHIBITS(2 @$2,000.00 each) $ 4,000.00*
TOTAL $ 4,000.00
*STATE&LOCAL SALES TAX ON TAXABLE SURVEY SERVICES $ 330.00
Terms and conditions shall be the same as per our original agreement.
*Please note that boundary surveying and related services are subject to state and local sales tax.
Sales tax is not included in the fees above. It is our understanding that the work described in this
proposal will be performed under a subcontract to a Prime Agreement between RPGA Design
Group, Inc. and City of Fort Worth, a tax-exempt entity. If RPGA Design Group, Inc. provides
Pacheco Koch with a "Texas Sales and Use Tax Exemption Certificate" or a "Texas Sales and Use
Tax Resale Certificate"prior to Pacheco Koch beginning work,then sales tax will not be charged
when these services are invoiced.
If this request is acceptable to you as presented, please sign where indicated below and return
to our office for our mutual agreement. If you have any questions or need any additional
information,please call me at your earliest convenience.
Sincerely,
Michael L.Lewis, R.P.L.S.
ACCEPTED BY. RPGA Design Group, Inc.
SIGNATURE DATE
PRIMPED NAME AND NU
MLL/enh
4012-17.506 Add Serve2RI
Geolechnical 5058 Brush Creek Road Td.-817-06-5600
ALPHA fConstruction Materials Forl N'orllr, Texas 76119 Fax.817-496-5608
En►9ronmental )VIPuaalphalesling.com
TBPE Firm No.813
WHERE IT ALL BEGINS
November 27,2018
RPGA Design Group,Inc.
101 Jennings Avenue,Ste. 100
Fort Worth,TX 76104
Attention:Javier Lucio,Principal
Re: Proposal Geotechnical Exploration
Fire Station 43
SEC Linkmeadow Drive and
Camp Bowie West Boulevard
Fort Worth,Texas
ALPHA Proposal No.63517-revl
ALPHA TESTING, INC. (hereinafter "ALPHA") is hereby pleased to submit to RPGA Design Group, Inc. (hereinafter
"Client")the following proposal for a Geotechnical Exploration on the project referenced above. We understand ALPHA
has been selected to perform professional services for this project based solely on our qualifications and that the client is
currently negotiating work scope and fee exclusively with ALPHA at this time.
Project Information
We understand the project will consist of a new fire station on a combined 2-acre tract of land. We further understand the
building will have a structurally suspended floor slab. The purpose of the geotechnical study will be to provide information
for use in design of typical foundations for the proposed project.
Scope of Work
This study will include the following evaluations:
Subsurface soil, rock and groundwater conditions on the site to depths that would be significantly affected by
foundations.
Engineering characterization of the subsurface materials encountered.
Typical foundations suitable for support of the proposed project.
Data required for design of typical foundation systems for the project.
Recommendations regarding earthwork, including grading and excavation, backfilling and compaction, the
treatment of in-place soils for the support of foundations,pavement and possible construction problems reasonably
to be expected.
As requested,we will explore the subsurface soil and/or rock conditions at the site by drilling two(2)test borings to a depth
of 45 ft, one(1) test boring to a depth of 25 ft and three(3) test borings to a depth of 5 ft. At the completion of drilling
operations,boreholes will be backfilled and plugged with soil cuttings,and any pavement that is penetrated will be patched
with similar material. Settlement of boreholes may occur over time. ALPHA shall not be responsible for any settlement of
boreholes that may occur after initial backfilling. The number and depth of the test borings required to obtain the necessary
field data may vary depending on the actual soil and/or rock conditions encountered. If unusual subsurface conditions are
encountered and alternate field work is indicated, we will consult with the client prior to initiating any additional services.
Please note,regardless of the number of borings performed subsurface conditions between borings may vary.
The study will also include laboratory tests to evaluate the classification,gradation and certain physical characteristics of the
subsurface soils. The specific types and quantities of tests will be determined based on soil/rock conditions encountered in
the borings. Our laboratories are fully equipped with modern equipment for soil and rock testing and tests are performed by
trained qualified technicians in compliance with the applicable specifications. Field exploration programs are conducted with
drilling equipment operated by experienced and reliable drillers. All field and laboratory staff are supervised by professional
engineers.
Results of the field exploration and laboratory tests will be utilized in the engineering analysis and the formulation of our
recommendations. Results of our study, including the substantiating data and our recommendations,will be presented in a
written report prepared by a Licensed Professional Engineer.
Costs and Schedule
Our fee for performance of the geotechnical study on the site described will be as noted below. We guarantee not to exceed
this figure without your approval. Boring operations would commence within about seven (7) working days from your
notification to proceed. The complete written report would be electronically sent to you within about ten(10)working days
following completion of the boring operations.
Geotechnical Lump Sum Fee $4,900.00
Worlting Days to Complete Study 18 days
The above cost estimate is valid for 90 days and is based on Client providing suitable access and entry to test boring locations
during normal business hours. Client represents that it has full authority from the current landowner to engage ALPHA to
perform this study. The pricing provided above assumes test boring locations can be accessed using standard,truck-mounted
drilling equipment. Surveying of boring locations and elevations is not included in the cost estimate,but can be provided if
needed upon request. If difficult site conditions are encountered, alternate pricing may be provided using an All-Terrain
Drilling Unit or other portable equipment.Drilling through surface concrete, if necessary,will be charged at an additional$
85.00/hole.
Prior to start of drilling, ALPHA will contact Texas One-Call utility clearance(Texas8l 1)to mark and clear utilities at the
boring locations. The Client shall provide any known site specific utility information upon acceptance of this proposal.
ALPHA is not responsible for damage to any below grade utilities of which we are not made aware.
Please note: Our field equipment may rut the site during drilling operations. A concerted effort will be made to minimize
such problems,however,ALPHA is not responsible for re-grading or repairing rutted areas if they develop.
The scope of work for this study does not include stability analysis for any slopes either to be constructed or which may exist
on the site. If the final grading plans indicate significant slopes(over about 3 ft high)will exist,it is recommended the client
have slope stability analysis conducted. Further,the scope of work proposed herein does not include design parameters for
retaining walls nor does it include global stability of the same. if a slope stability analysis and/or a retaining wall analysis is
desired,upon request,ALPHA will provide a separate Proposal for such analysis.
If this Proposal is acceptable,please have an authorized officer sign in the space provided below in the Proposal Acceptance
Form and return a signed copy via either email or fax, or the signed original to our office. We will consider receipt of a
signed original or copy of this Proposal as our Notice to Proceed. Work cannot be initiated prior to receiving a signed copy
of this Proposal. If a copy is e-mailed or faxed,client consents to such copy of a signature,or electronic signature,as serving
as an original signature. Unless prior arrangements are agreed to in writing,payment for services described in this Proposal +
is due within 30 days of invoice date. Payment of the invoice is not contingent on Client's agreement or acceptance of
ALPHA's design recommendations or report discussion. If CLIENT objects to any portion of an invoice or report, it shall
notify ALPHA in writing within ten(10)days from the date of actual receipt of the invoice of the amount and nature of the
dispute,and shall timely pay undisputed portions of the invoice.
By execution of this Proposal, the undersigned Client acknowledges and agrees that the attached"Terms and Conditions"
have been provided or made available to Client and Client agrees that such Terms and Conditions shall be applied to the
present Proposal and shall be fully binding upon Client. The "Terms and Conditions" are attached to this proposal as
"Exhibit A"and are fully incorporated into this Proposal by reference as if set forth herein.
Thank you for this opportunity to offer our services. We look forward to working with you on this project.
Sincerely,
ALPHA TESTING,INC.
Brian J.Hoyt,P.E.
Geotecludcal Department Manager
BJH/tm
Attachments: Proposal Acceptance Form
"Exhibit A"Terms and Conditions
Page 2 of 7 ALPHA Proposal No.63517-rev]
GEOTECHNICAL
PROPOSAL ACCEPTANCE FORM
Date:November 27,2018 ALPHA Proposal No.:63517-rev I
Project Name: Fire Station 43
Project Location: SEC Linkmeadow Drive and Camp Bowie West Boulevard,Fort Worth,Texas
CLIENT:
ADDRESS:
CITY/STATE/ZIP:
ATTENTION: TELEPHONE:
EMAIL: FAX:
*****REQUIRED INFORMATI ON*****(Must be comgLgW in order to process
Check bo.r if
ACCOUNTS PAYABLE CONTACT: ❑ sante as abol e
ADDRESS:
CITY/STATE/ZIP:
EMAIL: TELEPHONE:
Land Owner's Name:
Address:
City,St.Zip:
Project Legal
Description:
Project County:
The undersigned hereby accepts all the Terms and Conditions set forth in this Proposal and warrants that he/she has full
authority to bind the Client.
PROPOSAI.ACCEPTED BY:
Signature Title Date
PRINTED NAME:
REPORT DISTRIBUTION
COMPANY ATTENTION EMAIL ADDRESS
Page 3 of ALP14A Proposal No.63517-revl
#X
"EXHIBIT A"
Terms and Conditions
Section 1:The Agreement
The Agreement between the parties,which shall describe and govern CLI ENT's engagement of ALPHA TESTING,INC.(`ALPHA")to provide services
("Services")in connection with the project("Project")identified in the proposal("Proposal"),consists of the Proposal,these General Terms and Conditions
("Terms"),ALPHA's fee schedule,and any exhibits or attachments referenced in any of these documents.Together these elements constitute the entire
agreement between the parties,superseding any and all prior negotiations,correspondence,or agreements,either written or oral,with respect to the subject
matter of this engagement.This Agreement may only be modified by mutual signed,written agreement.In the event of a conflict between these Terms and
the Proposal or exhibits,the following order of precedence shall prevail:(i)These Term;(ii)the Proposal,and(iii)any exhibits or attachments referenced in
the foregoing.
Section 2:Stnadord of Care
The Services shall be performed in a manner consistent with the level of care anti skill ordinarily exercised by members of ALPHA's profession currently
practicing under similar conditions and in the same locality as the Project(die"Limited Warranty"). interpretations and recommendations by ALPHA will
be based solely on information discovered by,or made available to,ALPIIA during the course of the engagement. In connection with such information,
CLIENT recognizes that subsurface conditions across the site may vary from those observed at test locations,including but not limited to locations where
density tests and concrete tests,borings,surveys,or explorations arc made,and that site conditions may change over time.ALPHA shall not be responsible
for the use or interpretation of such information by non-parties to this Agreement nor shall ALPHA be responsible for changed site conditions or for
subsurface conditions at locations where testing, borings,surveys,or explorations are not made. if Client provides ALPI IA's report to any third Party,
Client shall make such third party aware of this limitation of liability,and shall defend,indemnify,and hold ALPHA harmless from any action against
ALPHA by such third parry.
EXCEPT FOR THE LiMITED WARRANTY ALPIIA MAKES NO OTHER REPRESENTATION OR WARRANTY EXPRESS OR IMPLIED
REGARDING THE SERVICES.AND EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES:MCLUDING,BUT NOT i3MITED'1'O.THE
IMPLIED WARRANTIES OF GOOD AND WORKMANLIKE PERFORMANCE AND OF FITNESS FOR A PARTICULAR PURPOSE.
Section 3:Site Access and Conditions
CLIENT shall grant to,or obtain for,ALPIIA unimpeded access to the Project site for all equipment and personnel necessary for the performance of the
Services,and access necessary for ALPHA's personnel to photograph the Project site.As required to effectuate such access,CLIENT shall notify all owners,
lessees,contractors,subcontractors,and other possessors of the Project site that ALPHA must be allowed free access to the site.CLIENT understands that,
in the normal course of performing the Services,some damage,including but not limited to injury to vegetation,rutting,and cracking ofconerete,may occur
as a result of ALPHA's performance of the Services,and further agrees that ALPIIA is not responsible for the correction of any such damage caused by
ALPHA unless so specified in the Proposal.Ci.IENT is responsible for the accuracy of locations for all subterranean structures and utilities,and CLIENT
waives any claim against ALPHA,and shall defend(with counsel acceptable to ALPHA),indemnify,and hold ALPI IA harmless from any claim or liability
for injury,damages,or lou by any party,including costs of defense and attorneys' fees,arising from damage caused as a result of subterranean structures
and utilities not being properly identified or accurately located by CLIENT. In addition,and without limiting the foregoing,CLIENT shall compensate
ALPHA for any consequential damages resulting from any such claim,including without limitation time spent or expenses incurred by ALPHA in defense
of any such claim,with such compensation to be based upon ALPHA's prevailing fee schedule and expense reimbursement policy.
Section 4:CLI ENT's Resnonsibllity and Proiect Understanding
CLIENT shall make available to ALPHA all information in its possession or subject to its control regarding existing and proposed conditions at the site.
Such information shall include,but not be limited to,plot plans,topographic surveys,hydrographic data,and previous soil date,including borings,field and
laboratory tests,and written reports.CLIENT shall immediately,but in no event later than tvcnly-four(24)hours after its receipt,transmit to ALPHA any
new information concerning site conditions that becomes available,and any change in plans or specifications concerning the Project to the extent such
information may affect ALPHA's performance of the Services. CLIENT shall,upon 24 hours oral or written notice,provide a representative at the Job site
to supervise and coordinate the Services.
Additional responsibilities of the CLIENT include:review of ALPI IA's work for overall coordination with the work of other consultants,including any
architects and engineers; with reasonable promptness,but in no event later than 48 hours,provide all available information regarding requirements for
ALPIIA's work; upon request by ALPHA, the CLIENT shall furnish the services of other reasonably required consultants, including surveys, testing
laboratory,etc.;prepare and assemble specifications for the General Conditions and Supplementary Conditions arid all architectural components of the
project,and coordinate assembly of ALPHA's specification sections into a proper format;notify ALPHA immediately iFthe Client,any architect,or any
engineer becomes aware of any fault or claimed deficiency with ALPHA's work,or nonconformance with the Contract Documents and provide ALPHA a
reasonable opportunity to cure any such deficiency or nonconformance;confer with ALPHA before issuing interpretations or clarifications of the documents
prepared by ALPHA;forward to ALPHA for review and recommendation all construction phase submittals that pertain to ALPHA's work;and advise
ALPHA of the identity and scape of services of other consultants participating in the Project.
ALPI IA shall not be liable for any inaccurate information furnished by CLIENT,and CLIENT shall defend(with counsel acceptable to ALPHA)indemnify
and hold ALPHA harmless against any claims,demands or liability,including costs of defense and attorneys'fees,arising out of,related to,or contributed to
by such inaccurate information. CLIENT waives any claim it might have against ALPHA for damages arising out its failure to timely provide accurate
information or its failure to timely provide new,changed,or additional information,as set forth in the preceding paragraph,and further agrees to indemnify
and hold harmless ALPHA From any claim or liability resulting from CLiENT's failure to timely provide such now,changed,or additional information.
Section S:Project Change
in the event CLIENT,the Project owner,Architect,Structural/Civil Engineer or other party makes any changes in the plans and specifications,CLIENT
agrees to defend and hold Ai PHA harmless from any liability arising out of such changes,and CLIENT assumes full responsibility for arty liabilities arising
out of such changes unless CLIENT has given ALPHA prior written notice of such changes and has received from ALPHA written consent for such
changes.
Page 4 of7 ALPHA Proposal No.63517-reel
Section 6:Conlidentiailly
All data,forms,software,or any other materials developed by ALPHA pursuant to the performance of Services under this Agreement,or supplied to or
obtained by ALPHA from CLIENT, or generated by ALPHA or its subcontractors is confidential (the"Confidential Material")and will be afforded
Confidential Treatment by ALPHA,its employees,agents,affiliates,and subcontractors.Proprietary concepts and systems of ALPHA,and ideas developed
by ALPHA during the performance of the Services shall remain the sole property of ALPHA("Alpha Intellectual Property"). Confidential Treatment
includes the following:(i)The Confidential Material will be available only to employees of ALPHA;and(ii)Confidential Material will not be disclosed to
any third party without the prior authorization of CLIENT. Upon completion of the Services or other termination of this Agreement,any Confidential
Material retained by ALPHA not previously provided to third parties pursuant to Client authorization shall be retained by ALPHA for a period ofat least 60
days,during which time period,such Confidential Material will be returned to CLIENT upon request by CLIENT.After this time period,ALPHA shall have
the right,but not the obligation,to destroy such Confidential Material,thus terminating its confidentiality obligations.If Confidential Material is retained by
ALPHA past such time period,the obligations slated in this Section 5 shall survive until the earliest of the following occur:(i)Confidential Material has
become available to the general public through no fault of ALPHA;or(ii)Confidential Material is received by ALPHA from others who arc in lawful
possession of such and who by such disclosure are not breaching any obligation to CLIENT.
Notwithstanding the foregoing,any confidential information supplied by ALPHA to CLIENT,as well as any ALPHA Intellectual Property(collectively,
"ALPHA Confidential Information"),embody proprietary technology and valuable trade secrets of ALPHA,which are vital to the business of ALPHA,and
whose value depends upon them not being generally known.CLIENT shall hold the ALPHA Confidential information in strict confidence and take all
necessary steps to ensure that access to any portion of the ALPHA Confidential Information is not provided to any person or entity other than CLIENT
without the express written permission of ALPHA.CLiENT expressly agrees that ifthe ALPHA Confidential Information is improperly disclosed ALPHA
will be irreparably damaged. In such event,ALPHA shall be entitled,without bond,other security,or proof of damages,to appropriate equitable remedies,
including injunctive relief,with respect any breach(es)of this Agreement,in addition to any other remedies available at law or in equity.in addition,
CLIENT's officers,directors,employees and affiliates will protect the confidentiality of the ALPHA Confidential Information with the same degree ofcare
as CLiENT affords its own confidential information(but in no event less than the degree of care that would be taken by a reasonable person),and shall not
disclose such information to any third party;provided,however,that Vie foregoing shall not apply to information that(a)is now or hereafter becomes
publicly known due to no fault ofCLIENT or(b)is disclosed to CLIENT by a third party without any breach ofan obligation of confidentiality.
Section 7:Sample Disposal
Samples of soil, rock,water,waste or other materials contaminated by hazardous substances,including asbestos,obtained from the Project site arc and
remain the property of the CLiENT.ALPHA shall retain such samples for no longer than fourteen(14)calendar days after the issuance of any document that
includes the data obtained from them,unless other arrangements are mutually agreed upon in writing.It is CLIENT's responsibility to select and arrange for
lawful disposal procedures that encompass removing the contaminated samples from ALPHA's custody and transporting them to a suitable disposal site.
Accordingly, unless CLIENT indicates otherwise within the fourteen (14) day period referenced above, CLIENT hereby instructs ALPHA to make
arrangements,as CLiENT's agent and at CLIENT's cost,for proper transportation and disposal of contaminated samples with appropriate licensed parties.
Due to the risks to which ALPHA may be exposed during transportation and disposal of contaminated samples,CLIENT waives any claim against ALPHA,
and shall defend,indemnify,and hold ALPHA harmless from any claim or liability for injury or loss,including costs of defense and attorneys'fee;arising
from ALPHA's service as CLiENT's agent in arranging for proper transportation and disposal of contaminated samples.There are extra costs involved in
this disposal by ALPHA of samples contaminated with highly toxic and/or hazardous substances(i.e.PCBs,Dioxins,Cyanide,Pesticides,etc.). In this ease,
the CLIENT shall pre-pay all transportation and disposal costs or ALPHA will return the samples to the project site for proper disposal by the Client.
Section 8:Construction Monllorinrr
ALPHA shall have no authority to reject or terminate the work of any agent or contractor of CLIENT.No action,statements,or communications of ALPHA,
or ALPHA's site representative,can be construed as modifying any agreement between CLIENT and others.ALPHA's presence on the Project site in no
way guarantees the completion or quality of the performance of the work of arty party retained by CLIENT to provide construction related services.Neither
the professional activities of ALPHA,nor the presence of ALPHA or its employees,representative;or subcontractors on the Project Site,shall be construed
to impose upon ALPIiA any responsibility for methods or quality of work performance,sequencing of construction,or safety conditions at the Project site.
CLIENT acknowledges that CLIENT or its general contractor is solely responsible for job site safety,and warrants and agrees that such responsibility shall
be made evident in the Project owner's agreement with the general contractor. CLIENT shall make ALPHA an additional insured under any general
contractor's general liability insurance policy.
in the event ALPHA expressly assumes any health or safety responsibilities for hazardous materials or other items as further set forth in this Agreement,the
acceptance of such responsibility shall not be deemed acceptance of responsibility for any other health or safety requirements,including but not limited to
those responsibilities or requirements relating to excavation,trenching,drilling or back filling.
Section 9:Ownershin of Documents
All reports,boring logs,field data,field rotes,laboratory test data,calculation,estimates and other documents prepared by ALPHA in connection with this
engagement,shall remain the property of ALPHA.CLIENT agrees that all reports and other material(s)famishcd by ALPHA to CLIENT,or to CLiENT's
agents,for which CLiE'NT has not paid will be returned to ALPHA upon demand and will not be used by CLiENT or others for any purpose whatsoever.
Unless otherwise required by law,ALPHA will retain all pertinent records relating to the Services performed for a period not exceeding five years following
submission of any report,as referred to herein,during which period the records will be made available to CLIENT at all reasonable limes. After such five
year period.ALPHA shall have the right,but not the obligation,to,in its sole discretion,destroy any or all of such documents.
Sectlon 10:Termination
This Agreement may be terminated without cause by either party upon ten(10)days'written notice by the terminating party. This Agreement may also be
terminated for cause by the non-defaulting party if,after seven(7)days after written notice ofa default in the performance ofany material provision of this
Agreement,the defaulting party fails to cure or correct such default.In the event of termination,ALPHA will he paid for services performed through the date
oftermination,plus reasonable termination expenses,including the cost of completing analysis,records,and reports necessary to document job status at the
time of termination.
Page 5 of 7 ALPI IA Proposal No.63517-revl
/�)k
Section 11:Risk Allocation and Limitation of Liability
The parties acknowledge that a variety of risks potentially affect ALPHA by virtue of entering into an agreement to perform the Services.The parties further
acknowledge and agree that there is no disparity in bargaining power between the parties. IN ORDER FOR CLIENT TO OBTAIN THE BENEFIT OF
A LONVER FEE THAN WOULD OTHERWISE BE AVAILABLE,CLIENT AGREES TO LiML'I'ALPHA'S LIABILITYTO CLIENT AND TO
ALL OTHER PARTiES FOR CLAMIS ARISING OUT OF ALPIIA'S PERFORMANCE AND THE SERVICES. THE TOTAL AGGREGATE
LIABILITY OF ALPHA SHALL NOT EXCEED THE'TOTAL FEE FOR THE SERVICES RENDERED ON THE PROJECT. OR $20,000,
WHICHEVER iS LOWER FOR ANY idABILITIES INCLUDING BUT NOT LiMITED TO NEGLIGENT PROFESSIONAL ACTS OR
ERRORS OR OMISSIONS AND CLIENT AGREES TO iNDEDINIFY ALPITA FOR ALL LIABILITIES IN EXCESS OF THE MONETARY
L11111TS ESTABLISHED. Client agrees that in no instance shall ALPHA be responsible,in total or in part, for the errors or omissions of any other
professional,contractor,subcontractor or any other third party. Client also agrees that ALPHA shall not be responsible for the means,methods,procedures,
performance,quality or safely oflhe constriction contractors or subcontractors,or for their errors or omissions.
Section 12:Discovery of Unanticipated Hazardous Materials
CLIENT warrants that it has made reasonable efforts to inform ALPHA of known or suspected hazardous materials on or near the Project site.The parties
acknowledge that hazardous materials may exist at a site even if there is no reason to believe they are present.ALPHA and CLIENT agree that the discovery
of such unanticipated hazardous materials constitutes a changed condition that shall require either a re-negotiation of the scope of ALPHA's Services or
termination of this Agreement without cause.CLiFNT recognizes that the discovery of hazardous materials may necessitate immediate protective measures
to safeguard the public health and safety and shall compensate ALPHA for measures that,in ALPHA's professional opinion,are necessary and justified to
preserve and protect the health and safety of site personnel and the public.CLIENT also shall compensate ALPHA for any equipment decontamination or
other costs incident to the discovery of unanticipated hazardous materials.ALPHA shall notify CLIENT as soon as practicable should unexpected hazardous
materials be encountered at the site that pose a threat to human health,safety and the environment.CLIENT agrees that,in the event of the discovery of
hazardous materials at the site,it shall report such discovery to the proper authorities as required by Federal,Slate,and local regulations.CLiE'NT agrees to
make the required report at the recommendation of ALPHA,or,if unable to do so,authorizes ALPHA to make such report.CLIENT shall also inform the
Project site owner in the event that hazardous materials are encountered at the site.
Notwithstanding any other provision of this Agreement,CLIENT waives any claim against ALPHA,and to the maximum extent permitted by law,agrees to
defend, indemnify,and save ALPHA harmless from any claim,liability and/or defense costs for injury or loss arising from the presence of(hazardous
materials on the project site,including any costs created by delay of the project and any costs associated with possible reduction of the property's value.
CLIENT is responsible for ultimate disposal of any samples secured by ALPHA that are found to be contaminated,at Ci(ENT's cost.
Section 13:Ground Nater Contamination
CLIENT acknowledges that it is impossible for ALPHA to know the exact composition of a site's subsurface,even after conducting a comprehensive
exploratory program.As a result,there is a risk that drilling and sampling may result in contamination of certain subsurface areas.Although ALPHA will
take reasonable precautions to avoid such an occurrence.CLIENT waives any claim against ALPHA for,and shall defend,indemnify and hold ALPHA
harmless from,any claim or liability for injury or loss which may arise as a result of subsurface contamination caused by drilling,sampling,testing or
monitoring well installation.CLIENT shall also adequately compensate ALPHA for any time spent and expenses incurred in defense of any such claim.
Section 14:Insurance
No insurance carried by ALPHA shall be deemed to limit in any way die responsibility of any contractor or subcontractor for damages resulting from their
services in connection with the Project.CLIENT shall include,or cause to be included,in the Project's construction contract such requirements for insurance
coverage and performance bonds to be secured and maintained by the Project contractor as CLIENT deems adequate to insure and indemnify CLIENT and
ALPHA against claims for damages,and to insure compliance of work performance and materials with Project requirements.
Section 15:Indemnity
ALPHA and the Client shall each indemnify the other against claims for bodily injury or damage to tangible properly resulting from:(a)negligent error,
omission or act of the indemnitor or the indemnitor's officers,servants,employees or subconsullants in the performance of the work hereunder;or(b)
negligent failure of the indemnitor or the irdeni nitor's officers,servants,employees or subconsullants to comply with laws or regulations;or(c)negligent
failure of the indeinnitor to perform under any contract with any other party,its,officers,servants,employees,subconsultants or clients. This indemnity
obligation shall survive perfortnemce ofthe services hereunder.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN,ALPHA WILL NOT INDEMNIFY CLIENT FOR ITS OWN NEGLiGENCE.
Section 16:Invoices and Payment Terms
in consideration for the performance of the Services,ALPHA shall be paid an amount and according to terms set forth in the Proposal("Project Cost"),
however,if payment terms arc not listed in the Proposal,payment for Services shall be payable within thirty(30)days of ALPHA's invoice date(the
"Payment Due Date").All payments must be paid by lite Payment Due Date,and shall not be contingent upon CLiENT's receipt of separate payment,
financing or closing on the project property,or other conditions whatsoever. if CLIENT objects to any portion of an invoice,it shall notify ALPHA in
writing within ten(10)days from the dale of actual receipt of the invoice of the amount and nature of the dispute,and shall timely pay undisputed portions of
the invoice.Past due invoices and any sums improperly withheld by CLIENT shall accrue interest thereon at tike rate of one percent(10/6)per month,or the
maximum rate allowed by law,whichever is lower.CLIENT agrees to pay all costs and expenses,including reasonable attorney's fees and costs,incurred by
ALPHA should collection proceedings be necessary to collect on Client's overdue account.Unless the Proposal specifies the Project Cost as not-to-exceed
or lump sum.CLIENT agrees that cost estimates and schedules are based upon ALPHA's best judgment of Site conditions and other requirements at the
time of Proposal and should be used by CLIENT for planning purposes only.ALPHA will endeavor to perform the Services within the estimates but will
notify CLIENT if estimates arc likely to be exceeded. In the event ofchanged site conditions or other conditions requiring additional time,CLIENT agrees
to pay the reasonable and necessary increases resulting from such additional time.
Unless otherwise specified in the Proposal,CLIENT will be solely responsible for all applicable federal,stale or local duty,import,sales,use,business,
occupation,gross receipts or similar tax on the Services,and for any applicable duty,import sales,uses,business,occupation,gross receipts or tax and
shipping charges relating to equipment and repair parts furnished in connection with the Services. In the event ALPHA is required to respond to any
subpoena or provide testimony(as a fact or expert witness)related to the Services,CLIENT shall pay ALPHA for time and expenses in accordance with
ALPHA's then current fee schedule.
Page 6 of7 ALPI IA Proposal No.63517-revl
Section 17: Non-Solicitation
During ALPHA's performance on the Project and for a period of one(1)year after the Project is completed or otherwise terminated for any reason,CLIENT
shall not,directly or indirectly,individually or on behalf of any other person,firm,partnership,corporation,or business entity ofany type:(i)solicit,assist
or in any way encourage any current employee, contractor or consultant of ALPHA to terminate his or her employment relationship or consulting
relationship with or for ALPHA,nor will CLIENT solicit the services of any former employee or consultant of ALPHA whose service has been terminated
for less than six(6)months,or(ii)solicit to the detriment of ALPHA andtor for the benefit of any competitor of ALPHA,take away or attempt to take away,
in whole or in part,any customer of ALPHA or otherwise interfere with the ALPHA's relationship with any of its customers. CLIENT understands and
acknowledges that ALPHA's employees,contractors and consultants are a valuable resource to ALPHA,and often these persons hold confidenlial and or
trade secret information of ALPHA's,including proprietary technology and valuable trade secrets of ALPHA,which are vital to the business of ALPHA and
whose value depends upon them not being generally known. CLIENT expressly agrees that,if ALPHA's employees,contractors,and consultants are
solicited in contravention of this Non-Solicitation provision,that ALPHA will be irreparably damaged. in such event,ALPHA shall be entitled,without
bond,other security,or proof of damages,to appropriate equitable remedies with respect any breach(es)of this Agreement,including injunctive relief,in
addition to any other remedies available at law or in equity.
Section 18:Resolution of Disputes
All claims,disputes,controversies or matters in question arising out of,or relating to,this Agreement or any breach thereof,including but not limited to disputes
arising out of alleged design defects,breaches of contract,errors,omissions,or acts of professional negligence,(collectively"Disputes")shall be submitted to
mediation before and as a condition precedent to pursuing any other remedy.Upon written request by either party to this Agreement for mediation of arty dispute,
CLIENT and ALPI IA shall select a neutral mediator by mutual agreement.Such selection shall be made within ten(10)calender days of the date of receipt by the
other party of the written request for mediation.In the event of failure to reach such agreement or in any instance when the selected mediator is unable or
unwilling to serve and a replacement mediator cannot be agreed upon by CLIENT and ALPiIA within ten(10)calendar days,a mediator shall be chosen as
specified in the Construction Industry Mediation Rules of the American Arbitration Association then in effect,or any other appropriate rules upon which the
parties may agree.Arry disputes or controversies not resolved or settled by the panics hereto shall be submitted to arbitration. Demand for arbitration shall be
made by either party within ten(10)calendar days following termination of mediation.The date of termination of mediation shall be the date of written notice of
closing mediation proceedings issued by the mediator to each of the parties.Demand for arbitration shall be made by filing notice of demand,in writing,with the
other party and with the American Arbitration Association,under its Construction industry Rules.The award rendered,if any,by the arbitrator(s)shall be final
and binding on both parties and judgment may be entered upon it in accordance with applicable law in arty court having jurisdiction.Notwithstanding any other
provisions of this Section,in no event shall a demand for mediation or arbitration be made more than two(2)years from the date of the party making demand
knew or should have known of the dispute or five(5)years from the date of substantial completion of ALPHA's Services,whichever date shall occur earlier.All
mediation or arbitration shall take place in Dallas County,Texas,unless CLIENT and ALPHA agree otherwise.The fees of the mediator and/or arbitrator(s),the
mediation and/or arbitration filing and proceeding fees,and other costs associated with the mediator or arbitrator(s)shall be apportioned equally between the
parties,subject to,in the case of arbitration,to adjustment by the arbitrator(s)as pari of the award. The prevailing party in any arbitration proceeding shall be
entitled to recoveryof its reasonable attorneys'fees from the non-prevailing party,as determined by the arbitrator(s).
Section 19:Governine thaw and Survival
The validity of this Agreement,these terns,their interpretation and performance shall be governed by and construed and enforced in accordance with the taws of
the State of Texas without regard to its conflict of laws rules or similar principles which would refer to and apply the substantive laws ofanolher jurisdiction,and
applicable international conventions and treaties.The parties hereto hereby consent and agree that venue of any arbitration action shall lie exclusively in Dallas
County,Taus,and the parties hereby consent to the exclusive jurisdiction of the state courts located in Dallas County,Texas to hear and determine any elaims,
disputes,or award between the parties arising out of such arbitration,or for arty matter found to not arise under the parties'arbitration agreement.The parties
hereto expressly submit and consent in advance to such jurisdiction and hereby%valve any objection to such jurisdiction. If any ofthe provisions contained in this
agreement rare held illegal,invalid,or unenforceable,the enforceability ofthe remaining provisions will not be impaired.
Page 7 ot7 ALPHA Proposal No.63517-reel