HomeMy WebLinkAboutContract 56217-A1 AMENDMENT NO. 1 TO AGREEMENT
STANDARD AGREEMENT FOR TECHNICAL SERVICES
Construction Materials Testing for Fire Station 45
STATE OF TEXAS
CITY SECRETARY CONTRACT NO. 56217-A1
COUNTY OF TARRANT
WHEREAS, The City of Fort Worth and Alpha Testing, Inc. (Consultant) made and
entered into City Secretary Contract No. CSC 56217 (The Contract) which was
authorized administratively, for Construction Materials Testing for Fire Station 45; and
WHEREAS, further amendment is necessary to reimburse the Consultant as part of the
design services agreement for additional design services for Additional Materials
Testing.
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 testing services for the completion of construction. The cost
of this additional service is not to exceed $10,223.50. The scope of services is
described more fully in Alpha Testing, Inc Letter dated April 12, 2022, subject:
"Construction Materials Testing, Services and Fees, Chang Order No. 1 — Fire
Station #45 — Preliminary, Fort Worth, Texas, Cost Estimate No: 85162-2019-
40".
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 $40,771 .00 unless the City and the Consultant mutually agree
upon a fee amount for additional services and amend this Agreement
accordingly."
OFFICIAL RECORD
CITY SECRETARY
City of Fort Worth,Texas FT.WORTH, TX
Standard Agreement for Professional Services AMENDMENT
Revision Date:3/20/2020
Page 1 of 2
Executed effective as of the date signed by the Assistant City Manager below.
FORT WORTH:
City of Fort Worth Contract Compliance Manager:
By signing I acknowledge that I am the person
responsible for the monitoring and
g,�A administration of this contract, including
By: Dana Burghdoff(Way 17,20 10:522 3CDT) ensuring all performance and reporting
Name: Dana Burghdoff, AICP requirements.
Title: Assistant City Manager
Date: May 17, 2022
Approval Recommended: Name: Brian Glass
Title: City Architect
Approved as to Form and Legality:
By: Steve 21,202213:38 CDT)
Name: Steve Cooke
Title: Director, Property Management Dept.
By:
Attest: Name: John B. Strong
Title: Assistant City Attorney
Contract Authorization:
By: J nette S.Goodall(May 17,2022 10 CDT) M&C: n/a
Name: Jannette Goodall pa4�nn�
Title: City Secretary �r FORr�a�
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By: Ken Combs(Apr 20,2022 11:32 CDT)
Name: Ken Combs
Title: Vice-President
Date: Apr 20, 2022
OFFICIAL RECORD
CITY SECRETARY
City of Fort Worth,Texas FT.WORTH, TX
Standard Agreement for Professional Services AMENDMENT
Revision Date:3/20/2020
Page 2 of 2
C
OrderCMT COST ESTIMATE
Change
Fort Worth,Texas
• No: 85162
CALPHA fNt T E S T I N G
WHERE IT ALL BEGINS
Environmental Geotechnical Construction Materials
A L P N A #'%TESTING ceofe<n°"a' 5058Brush Creek Road TeL 817.496.5600
'Enwro meat MaferiaLs
Envrronertenfal Fort(North,Texas 76713 Fax:817.436.56;09
WHERE IT ALL BEGINS
TBPE Firm No.813 miwwj0h.9f,-"V win
April 12, 2022
CITY OF FORT WORTH ARCHITECTURAL
DEPARTMENT
401 West 13Th Street
Fort Worth, Tx 76102
Attention: Ronald Clements
Ronald.Clements@fortworthtexas.gov Construction Materials Testing
Services and Fees
CHANGE ORDER NO.1 - FIRE STATION#45 -PRELIMINARY
Fort Worth, Texas
Cost Estimate No: 85162-2019-40
We are pleased to submit the following cost estimate for performing Construction Materials Testing on the project
referenced above.
Thank you for the opportunity to submit this estimate. If this cost estimate is satisfactory, would you please sign the
enclosed cost estimate acceptance sheet and return it to us. We will consider receipt of a signed copy of this cost
estimate as our official notice to proceed.
We look forward to working with you on this project. If there are any questions, please contact Ben Njaria at
817.496.5600, ext. 3318, we are available to discuss any questions at your convenience.
Respectfully submitted,
ALPHA TESTING, LLC.
Ben Njaria
Senior CMT Estimator
1 -
Ilttss
BN/jr Tim Begole,Jr.
Attachments: Acceptance Sheet CMT Department Manager
General Terms and Conditions
Cost Estimate No: 85162-2019-40 2
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FIRM PROFILE
HISTORY
Alpha Testing, LLC. (Alpha), a Texas corporation established in 1983, provides full-service geotechnical engineering,
construction materials testing and inspection, and environmental services. Our goal since 1983 has been to be
recognized as "First in Service" by our clients. Alpha is known for responsiveness, accurate and reliable data collection,
and consistent recommendations - all provided as agreed. Let the success of your next project start with us!
Alpha is a registered Texas engineering firm (#813) and a Texas geoscience firm (#50341), meets the requirements of
ASTM E-329, is AASHTO R-18 accredited, and has engineers licensed in multiple states. Alpha currently employs over
275 people.
Alpha recognizes that our client base faces challenges at every turn, either meeting a deadline, meeting a budget, or
overcoming a field or design challenge. It is our internal challenge to make your challenges ours. Tell us what you
need,we will take ownership, ask the needed questions, then be responsive in execution.
BUSINESS LOCATIONS
1. Dallas Office—Corporate
2209 Wisconsin St., Suite 100, Dallas,Texas 75229
(V) 972-620-8911 (F) 972-620-1302
Brian Powell, PE, President: bpowell@alphatesting.com
Ken Combs,Vice President: kcombs@alphatesting.com
2. Fort Worth Office
N� mv 5058 Brush Creek Rd. Fort Worth,TX 76119
(V) 817-496-5600 (F) 817-496-5608
Tim Begole, CET, CMT Manager: tbegole@alphatesting.com
Brian Hoyt, PE, Geotechnical Manager: bhoyt@alphatesting.com
3.San Antonio Office
4740 Perrin Creek, Suite 480 San Antonio, TX 78217
(V) 210-249-2100 (F) 210-249-2101
Adam Heiman, PE, Geotechnical Dept. Manager: aheiman@alphatesting.com
4. Houston Office
6513 W. Little York Road, Houston, TX 77040
(V) 713-360-0472 (F) 713-360-0481
Joseph Culley, Regional Manager:jculley@alphatesting.com
Quality Control
All testing equipment in Alpha's laboratories is calibrated on an annual basis using traceable standards (NIST or NSTQ.
Calibrations are confirmed by CCRL and AASHTO on a bi-annual basis during third-party inspections.Along with
calibration of equipment,Alpha also maintains an internal QA/QC program to assure consistent and reliable test
results. This program pertains to methodologies for performing tests that have been developed and expanded
through years of experience.
Cost Estimate No: 85162-2019-40 3
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ESTIMATED TESTING SCHEDULE
The following is our estimate of the number, type and cost of anticipated construction materials testing for the project
referenced previously. This estimate of the expected testing was developed based on project plans and information as
provided by the client. It should be recognized that variations in construction schedules, weather, amount of re-
testing, additional testing requested by our client, etc., could result in differences between the actual and estimated
testing costs.Although efforts will be made to maintain the testing costs within the estimated amount, charges will be
computed based on actual services rendered.
Testing services proposed herein do not include full-time personnel on site nor any form of project supervision. It is
our understanding that testing will be scheduled by the client or his designated representative, and ALPHA TESTING,
LLC. does not assume the responsibility for assuring all required tests are performed. If desired, ALPHA could
monitor testing frequencies and locations during the progress of the work to assure the required testing is performed,
at an additional cost.
I.Concrete Testing (Change Order#1)
DescrLptLon Est. •
Prepour Monitoring/Hour 12.00 $40.00 $480.00
Concrete-Testing/Hour 95.00 $40.00 $3,800.00
Concrete Comp.Test/Each 85.00 $18.50 $1,572.50
Cylinder Pickup/Hour 15.00 $40.00 $600.00
Vehicle Trip Charge/Trip 20.00 $35.00 $700.00
Engineering Report Review/Hour 3.00 $85.00 $255.00
Subtotal(Change Order#1) $7,407.50
II.Structural Steel(Change Order#1)
DescrLptLon Est. •
Structural Steel Inspection/Hour 9.00 $75.00 $675.00
Subtotal(Change Order#1) $675.00
III. Mortar&Grout (Change Order#1)
DescrLptLon Est. •
Masonry Observation& Reporting/Hour 28.50 $50.00 $1,425.00
Masonry Observation& Reporting (ot)/Hour 2.00 $75.00 $150.00
Cubes/Each 6.00 $18.50 $111.00
Grout Prisms/Each 8.00 $25.00 $200.00
Engineering Report Review/Hour 3.00 $85.00 $255.00
Subtotal(Change Order#1) $2,141.00
Grand Total: $10,223.50
*Should ALPHA TESTING, LLC.be awarded the testing for the above referenced project,it is requested that a complete set of
approved plans and specifications be forwarded to this office along with the signed authorization to proceed.
Cost Estimate No: 85162-2019-40 4
CMT ACCEPTANCE FORM
Date: April 12, 2022 Alpha Cost Estimate No: 85162-2019-40
CHANGE ORDER NO.1 -FIRE
Project Name: STATION#45-PRELIMINARY
CMT Base Estimate $10,223.50
Project City: Fort Worth,Texas
* Highlighted Areas Must Be Filled Out
CLI ENT: ATTN:
ADDRESS: EMAIL:
CITY/STATE/ZIP: PHONE/FAX:____________________
OWNER OF PROPERTY:
ADDRESS: C I TY/STAT E/Z I P:_ __ _ ____ _— _ _ __J_____
PROJECT LEGAL DESCRIPTION:
PROJECT COUNTY:
The undersigned hereby accepts all the Terms and Conditions set forth in this cost estimate and warrants that he/she has full
authority to bind the Client. Payment Terms:Net Within 30 days in Dallas,Texas.
No reports will be issued until we have a signed contract,purchase order or Letter of Authorization to proceed in our office. Signed
contract, purchase order or Letter of Authorization to proceed must be received within 3 days of commencement of services or work
stoppage will commence on the 4th day and continue until signed authorization is received in our office.
For projects with new clients under $1,500.00,written authorization must be received prior to the start of work and payments must
be received before any reports are issued. Service for welding certifications and ferroscan work must be paid prior to work or upon
arrival to the site to perform the work.
Non-Solicitation Agreement:The undersigned shall not,directly or indirectly,solicit for employment,or advise or recommend to
any other person that they solicit for employment,any employee of Alpha Testing,LLC.
Cost Estimate ACCEPTED BY:
Signature Title Date
Accounts Payable Contact:
Name: Phone: Email.-
Please indicate in the space provided authorized field personnel,along with email or mobile numbers,who may sign our Field
Technicians time ticket upon completion of our daily work: (If no names are provided it will be
understood no authorized field representative signature is required.)
REPORTS WILL BE PROVIDED TO THE CLIENT VIA THE INTERNET
Please provide a personal password for this project (up to 15 characters): Please provide a valid
email address: .You will be contacted by email and given your Project ID number to use for
login access to the Alpha website,www.alphatesting.com,to retrieve your reports. You can directly print any individual
report or all reports within a range of dates you specify.
REPORT DISTRIBUTION
Firm Contact Name Email
Cost Estimate No: 85162-2019-40 5
REMARKS
Services and fees not listed above will be quoted on request.
Invoices will be submitted monthly for services performed. Payment will be due in Dallas within thirty(30)days of receipt of invoice.
Interest will be added to delinquent accounts at a rate of 1.5 percent for each month of delinquency.
Payment of the invoice is not contingent on Client's agreement or acceptance of ALPHA's test result or findings.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.
Next day results for Standard Proctor Tests will be charged at 1.5 times the standard unit prices.
The prices above include electronic copies of the report distributed in accordance with client's instructions.Additional physical
copies will be billed at a rate of$.25 per sheet.
All field services are charged portal-to-portal,minimum charge of 3 hours per trip applies to all field work.
All reports are available on line.
Dispatch schedule hours are Monday-Friday from 7:00 am to 5:00 pm and Saturday 7:00 am to 12:00 pm. All schedule calls made after
these hours will be returned in the order received.Please make sure to schedule work in a timely manner(a minimum of 24 hours in
advance)if you want ALPHA to guarantee a technician on site at the desired time.Dispatch phone numbers:817-507-0546.Note:You must
reference Alpha's job project number to schedule services.If project number is unknown please reference cost estimate number shown on
the CMT acceptance form.
**Note:Due to the everchanging circumstances surrounding the COVID-19 Virus,situations may arise during the performance of this
agreement that affect availability of resources and staff of ALPHA,the Client,other consultants,and public agencies. Therefore,there
could be changes in the referenced schedule and/or project costs. ALPHA will exercise reasonable efforts to overcome the challenges
presented by current circumstances,but ALPHA will not be liable to Client for any delays,expenses,losses,or damages of any kind arising
out of the impact of the COVID-19 Virus.
Cancellations will be invoiced for portal to portal times as well as time spent on site awaiting determination of cancellation.
Services performed outside a 40 mile radius of this area will be charged mileage of$.55 a mile.
Overtime rates will be applicable for services performed in excess of 8 hours per day and on Saturdays and Sundays.Services
performed on holidays will be billed at 2.0 times the regular hourly rate.
Waiver of Subrogation-If a Waiver of Subrogation is required by your company,there will be a fee applied to your first invoice.The
fee will be a minimum of$300.00 charge or 1%of contract price plus$50.00,which ever is greater.
ALPHA TESTING,LLC.provides no warranty,either expressed or implied,that the testing provided under this contract satisfies all
requirements of the plans and specifications for the project,applicable City specifications or other governing bodies that may have
jurisdiction over the project.
No reports will be issued until we have a signed contract, purchase order or Letter of Authorization to proceed in our office.
Signed contract,purchase order or Letter of Authorization to proceed must be received within 3 days of commencement of services
or work stoppage will commence on the 4th day and continue until signed authorization is received in our office.
For projects with new clients under$1,500.00 written authorization must be received prior to the start of work and payments must
be received before any reports are issued.Service for welding certifications and ferroscan work must be paid prior to work or upon
arrival to site to perform the work.
PLEASE NOTE:In keeping OSHA Safety regulation,ALPHA TESTING,LLC.employees will not enter a trench to test that is not in
compliance with current OSHA regulations.Delays or cancellations caused by waiting for trench(s)to be brought into compliance
will be invoiced on an hourly basis.
Cost Estimate No: 85162-2019-40 6
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"EXHIBIT A"
Terms and Conditions
Section 1:The Agreement
The Agreement between the parties,which shall describe and govern CLIENT's engagement of ALPHA TESTING, LLC. ("ALPHA") to
provide only the services("Services") in connection with the project("Project")which are specifically identified and agreed to 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 Terms, (ii) the
Proposal,and (iii)any exhibits or attachments referenced in the foregoing.
Section 2:Standard of Care
The Services shall be performed in a manner consistent with the level of care and skill ordinarily exercised by members of ALPHA's
profession currently practicing under similar conditions and in the same locality as the Project.. Interpretations and
recommendations by ALPHA will be based solely on information discovered by, or made available to,ALPHA 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 are made, and that site conditions may change over time, and as such, CLIENT shall be solely responsible for
determining the locations and scope of testing related to the subsurface exploratory program and assumes all risks related thereto.
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 ALPHA'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 party.
ALPHA MAKES NO OTHER REPRESENTATION OR WARRANTY,EXPRESS OR IMPLIED,REGARDING THE SERVICES,AND EXPRESSLY
DISCLAIMS ANY OTHER WARRANTIES;INCLUDING,BUT NOT LIMITED TO,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,ALPHA 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 of concrete,may occur as a result of ALPHA's performance of
the Services, and further agrees that ALPHA is not responsible for the correction of any such damage caused by ALPHA unless
otherwise specified in the Proposal. CLIENT is solely 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
ALPHA harmless from any claim or liability for injury,damages, or loss 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.
Cost Estimate No: 85162-2019-40 7
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Section 4:CLIENT's Responsibility and Project Understanding
CLIENT shall provide or otherwise 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 data, including borings, field and laboratory tests, written reports, drawings, plans and
specifications. CLIENT shall immediately, but in no event later than twenty-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 ALPHA'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 ALPHA'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 and all architectural components of the project, and coordinate assembly of ALPHA's
specification sections into a proper format; notify ALPHA immediately if the Client, any architect, or any engineer becomes aware of
any item or condition which in directly,or indirectly, may affect the performance of Alpha's work and 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 scope of services of other consultants participating in the Project. Client shall be solely responsible
for coordinating the services of its consultants with the services of ALPHA.
ALPHA shall not be liable for any incomplete or inaccurate information furnished by CLIENT or damages caused by CLIENT's failure to
strictly adhere to the recommendations of ALPHA contained in any Geotechnical Report,Addendum or other correspondence,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 incomplete or inaccurate information or failure to
follow the recommendations of ALPHA. 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 new,changed,or additional information.
Section 5:Project Change
In the event CLIENT, the Project owner, Architect, Structural/Civil Engineer or other party makes any changes in the initial
information provided by the client, including, but not limited to the size and location of the planned improvements, or makes any
changes or alterations to any plans and/or specifications provided to ALPHA, CLIENT agrees to defend and hold ALPHA harmless
from any liability arising out of such changes,and CLIENT assumes full responsibility for any claims,damages or liabilities arising out
of or related to such changes unless CLIENT has given ALPHA prior written notice of such changes and has received from ALPHA
written consent for such changes.
Cost Estimate No: 85162-2019-40 8
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Section 6.Confidentiality
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 (d) 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 of at
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 stated in this Section
6 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(d) Confidential Material is received by ALPHA from others who are in lawful possession of such and who by
such disclosure are not breaching any obligation to CLIENT.
Section 7.Sample Disposal
Samples of soil, rock,water,waste or other materials contaminated by hazardous substances,including asbestos,obtained from the
Project site are 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 on behalf of
CLIENT and at CLIENT's sole cost and expense, 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' fees, arising out of or related to from ALPHA's service in arranging for proper
transportation and disposal of contaminated samples on behalf of CLIENT.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 case,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 Observations
ALPHA shall have no authority,duty or responsibility 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, may 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 any party retained by CLIENT to provide construction related services. Neither the professional activities of ALPHA, nor the
presence of ALPHA or its employees, representatives, or subcontractors on the Project Site, shall be construed to impose upon
ALPHA any responsibility for methods or quality of work performance,sequencing of construction,or safety conditions at the Project
site. In that regard, CLIENT acknowledges that ALPHA shall not be responsible for the means, methods,techniques or sequences of
construction as these are the sole responsibility of the contractor. CLIENT further 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.
Cost Estimate No: 85162-2019-40 9
Section 9.Ownership of Documents
All reports, boring logs,field data,field notes,laboratory test data,calculations,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)
furnished by ALPHA to CLIENT, or to CLIENT's agents,for which CLIENT 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 a reasonable and mutually convenient time. 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.
Section 10.Termination
This Agreement may be terminated by ALPHA without cause 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 of a default in
the performance of any material provision of this Agreement,the defaulting party fails to cure or correct such default. In the event of
termination, ALPHA will be paid for services performed through the effective date of termination, plus reasonable termination
expenses, including the cost of completing analysis, records, and reports necessary to document job status at the time of
termination.
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 LOWER FEE THAN WOULD OTHERWISE BE AVAILABLE, CLIENT AGREES TO LIMIT
ALPHA'S LIABILITY TO CLIENT, AND TO ANY AND ALL OTHER THIRD PARTIES, FOR CLAIMS ARISING OUT OF OR IN ANY WAY
RELATED TO THE SERVICES PERFORMED OR TO BE PERFORMED BY ALPHA. ACCORDINGLY,THE CLIENT AGREES THAT THE TOTAL
AGGREGATE LIABILITY OF ALPHA SHALL NOT EXCEED THE TOTAL FEE FOR THE SERVICES RENDERED ON THE PROJECT,OR$25,000,
WHICHEVER IS LOWER, FOR ANY LIABILITIES, INCLUDING BUT NOT LIMITED TO NEGLIGENT PROFESSIONAL ACTS OR ERRORS OR
OMISSIONS,AND CLIENT AGREES TO INDEMNIFY ALPHA FOR ALL LIABILITIES IN EXCESS OF THE MONETARY LIMITS 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 safety of the construction contractors or subcontractors,or for their errors or omissions.
Section 12.Discovery of Unanticipated Hazardous Materials
CLIENT represents and warrants that it has made reasonable efforts to discover and has informed 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. CLIENT 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 sole professional
discretion, 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, State,and local regulations.CLIENT 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 hold ALPHA harmless from any claim, liability and/or defense costs for damage,
injury or loss arising from or in any way related to 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 CLIENT's sole cost and expense.
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Section 13.Ground Water Contamination
CLIENT acknowledges that it is impossible for ALPHA to discover, ascertain or 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 the 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 AND HOLD THE OTHER HARMLESS FROM AND AGAINST ANY CLAIMS FOR
BODILY INJURY OR DAMAGE TO TANGIBLE PROPERTY RESULTING FROM: (A) NEGLIGENT ERROR, OMISSION OR ACT OF THE
INDEMNITOR OR THE INDEMNITOR'S OFFICERS, SERVANTS, EMPLOYEES OR SUBCONSULTANTS IN THE PERFORMANCE OF THE
WORK HEREUNDER; OR (B) NEGLIGENT FAILURE OF THE INDEMNITOR OR THE INDEMNITOR'S OFFICERS, SERVANTS, EMPLOYEES
OR SUBCONSULTANTS TO COMPLY WITH LAWS OR REGULATIONS;OR(C) NEGLIGENT FAILURE OF THE INDEMNITOR TO PERFORM
UNDER ANY CONTRACT WITH ANY OTHER PARTY, ITS, OFFICERS, SERVANTS, EMPLOYEES, SUBCONSULTANTS OR CLIENTS. THIS
INDEMNITY OBLIGATION SHALL SURVIVE PERFORMANCE OF THE SERVICES HEREUNDER AND SHALL BE LIMITED BY THE TERMS
AND CONDITIONS REFRENCED IN SECTION 11,ABOVE.
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 are 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 the 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 date 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 the rate of one percent (1%) 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 acknowledges that any cost estimates and
schedules provided by ALPHA may be subject to change based upon the actual Site conditions encountered,weather delays and
impact and any other requirements of the CLIENT 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 are likely to be exceeded. In the event of changed
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, state 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.
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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 of any 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 and/or 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
confidential 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.
CLIENT understands and acknowledges that ALPHA's employees,contractors and consultants are a valuable resource to ALPHA,and
often these persons hold confidential 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.
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Section 18.Resolution of Disputes
(a) Mediation. 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 any dispute, CLIENT and ALPHA shall
select a neutral mediator by mutual agreement.Such selection shall be made within ten(10) calendar 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 ALPHA 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.
(b) Arbitration. Any claim dispute or other matter in question arising out of or related to this Agreement subject to, but not
resolved by, mediation shall be subject to arbitration,which, unless the parties mutually agree otherwise, shall be administered by
the American Arbitration Association in accordance with its Construction Industry Arbitration Rules in effect of the date of this
Agreement. A demand for arbitration shall be made in writing, delivered to the other party of this Agreement, and filed with the
person or entity administering the arbitration. A demand for arbitration shall be made no earlier that concurrently with the filing of
a request for mediation,but in no event,shall it be made after the date when the institution of legal or equitable proceedings based
on the claim, dispute or other matter in question would be barred by the applicable statute of limitations. For statute of limitations
purposes, receipt of a written demand for arbitration by the person or entity administering the arbitration shall constitute the
institution of legal or equitable proceedings based on the claim, dispute or other matter in question. The forgoing agreement to
arbitrate,and other agreements to arbitrate with an additional person or entity duly consented to by parties to the Agreement,shall
be specifically enforceable in accordance with applicable law in any court having jurisdiction thereof. The award rendered by the
arbitrator(s) shall be final,and judgement may be entered upon it in accordance with applicable law in any court having jurisdiction
thereof.
(c) Consolidation or Joinder. Either party,as its sole discretion,may consolidate an arbitration conducted under this Agreement with
any other arbitration to which it is a party provided that (1) the arbitration agreement governing the other arbitration permits
consolidation; (2) the arbitrations to be consolidated substantially involve common questions of law or fact; and (3) the arbitrations
employ materially similar procedural rules and methods for selecting arbitrator(s). Either party,at its sole discretion, may include by
joinder persons or entities substantially involved in a common question of lay or fact whose presence is required if complete relief is
to be accorded in arbitration, provided that the party sought to be joined consents in writing to such joinder. Consent to arbitration
involving an additional person or entity shall not constitute consent to arbitration of any claim, dispute or other matter in question
not described in the written consent.The CLIENT and ALPHA grant to any person or entity made a party to an arbitration conducted
under this Section 18.C, whether by joinder or consolidation, the same rights of joinder and consolidation as the Owner and
Architect under this Agreement.
The provisions of this Section 18 shall survive the termination of this Agreement.
Section 19.Governing Law and Survival
The validity of this Agreement,these terms,their interpretation and performance shall be governed by and construed and enforced
in accordance with the laws 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 of another 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, Texas, and the parties hereby
consent to the exclusive jurisdiction of the state courts located in Dallas County,Texas to hear and determine any claims,disputes,or
award between the parties arising out of such arbitration, or for any matter found to not arise under the parties' arbitration
agreement.The parties hereto expressly submit and consent in advance to such jurisdiction and hereby waive any objection to such
jurisdiction. If any of the provisions contained in this agreement are held illegal,invalid, or unenforceable,the enforceability of the
remaining provisions will not be impaired.
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