Item 4D MemoItem 4D
Page 1 of 2
M E M O R A N D U M
(August 18, 2020)
To: Shana Yelverton, City Manager
From: Rob Cohen, Director of Public Works
Subject: Authorize expenditures with Alpha Testing, Inc. for
construction materials testing services of various construction
projects in an amount not to exceed $66,018.
Action
Requested: Authorize expenditures with Alpha Testing, Inc. for construction
materials testing services of various construction projects in an
amount not to exceed $66,018.
Background
Information: The City of Southlake contracts with a third-party contractor to
conduct quality control and assurance of the City’s construction
contractors. These construction materials testing services are to
ensure the City’s construction contractors are meeting industry
standards for utility and/or roadway construction. Typical projects
that may require materials testing are concrete paving, water line
installation, sanitary sewer installation, and storm sewer installation.
Since 2017, Alpha Testing, Inc. has conducted construction
materials testing for the City on various utility and roadway
construction projects including the installation of the sanitary sewer
lift station at Torian Place, SH 114 roadway improvements at the
intersection of Kirkwood Boulevard and Solana Boulevard, water
line and paving improvements at Whispering Dell Estates, and
installation of the sanitary sewer N-1 metering station.
Financial
Considerations: The City’s purchasing policy for these professional services were
exempt from bidding under the Texas Local Government Code
Chapter 2254, Section 2254.002, Professional and Consulting
Services Definitions: (2)(A)(vii) (Attachment A). The proposed
agreement for the Fuel Farm Water Line Extension will exceed the
$50,000 threshold by $16,018, therefore Staff is requesting
authorization of these expenditures.
Item 4D
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Below are expenditures with Alpha Testing, Inc. in FY 2020.
Construction Materials Testing Cost
Oxford Place Subdivision $ 5,508.50
Zena Rucker Road Construction $ 12,515.00
North White Chapel – North Road Construction $ 18,547.00
Sutton Place Drainage Improvements $ 9,247.50
S. Carroll Avenue – SB Lane Construction $ 2,900.00
Fuel Farm Water Line Extension - PENDING $ 17,300.00
Total $ 66,018.00
Funding for construction materials testing services of various
construction projects are budgeted as part of the approved Capital
Improvement Program. Expenditures will not exceed budgeted
funds.
Strategic Link: This item links to the City’s Strategy Map strategic focus areas of
Mobility, Infrastructure, and Performance Management & Service
Delivery. It specifically relates to the City’s Corporate Objectives,
B5: Enhance Service Delivery Through Continual Process
Improvement, and B6: Optimize Use Of Technology, and F2: Invest
to Provide & Maintain High Quality Public Assets.
Citizen Input/
Board Review: None.
Legal Review: None.
Alternatives: The City Council may approve or deny the request.
Staff
Recommendation: Authorize expenditures with Alpha Testing, Inc. for construction
materials testing services of various construction projects in an
amount not to exceed $66,018.
Supporting
Documents: Attachment A: Local Government Code Chapter 2254, Section
2254.002
Attachment B: Engineering Services Agreement – Fuel Farm Water
Line Extension
Staff Contact: Rob Cohen, Director of Public Works
GOVERNMENT CODE
TITLE 10. GENERAL GOVERNMENT
SUBTITLE F. STATE AND LOCAL CONTRACTS AND FUND MANAGEMENT
CHAPTER 2254. PROFESSIONAL AND CONSULTING SERVICES
SUBCHAPTER A. PROFESSIONAL SERVICES
Sec.A2254.001.AASHORT TITLE. This subchapter may be cited as
the Professional Services Procurement Act.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Sec.A2254.002.AADEFINITIONS. In this subchapter:
(1)AA"Governmental entity" means:
(A)AAa state agency or department;
(B)AAa district, authority, county, municipality,
or other political subdivision of the state;
(C)AAa local government corporation or another
entity created by or acting on behalf of a political subdivision in
the planning and design of a construction project; or
(D)AAa publicly owned utility.
(2)AA"Professional services" means services:
(A)AAwithin the scope of the practice, as defined
by state law, of:
(i)AAaccounting;
(ii)AAarchitecture;
(iii)AAlandscape architecture;
(iv)AAland surveying;
(v)AAmedicine;
(vi)AAoptometry;
(vii)AAprofessional engineering;
(viii)AAreal estate appraising; or
(ix)AAprofessional nursing; or
(B)AAprovided in connection with the professional
employment or practice of a person who is licensed or registered as:
(i)AAa certified public accountant;
(ii)AAan architect;
(iii)AAa landscape architect;
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Attachment A
(iv)AAa land surveyor;
(v)AAa physician, including a surgeon;
(vi)AAan optometrist;
(vii)AAa professional engineer;
(viii)AAa state certified or state licensed
real estate appraiser; or
(ix)AAa registered nurse.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 1997, 75th Leg., ch. 244, Sec. 1, eff. Sept. 1,
1997; Acts 1999, 76th Leg., ch. 1542, Sec. 1, eff. Sept. 1, 1999;
Acts 2001, 77th Leg., ch. 1409, Sec. 8, eff. Sept. 1, 2001.
Sec.A2254.003.AASELECTION OF PROVIDER; FEES. (a) A
governmental entity may not select a provider of professional
services or a group or association of providers or award a contract
for the services on the basis of competitive bids submitted for the
contract or for the services, but shall make the selection and
award:
(1)AAon the basis of demonstrated competence and
qualifications to perform the services; and
(2)AAfor a fair and reasonable price.
(b)AAThe professional fees under the contractAAmay not
exceed any maximum provided by law.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 1213 (H.B.1886), Sec. 14,
eff. September 1, 2007.
This section was amended by the 85th Legislature. Pending
publication of the current statutes, see H.B.3021, 85th
Legislature, Regular Session, for amendments affecting this
section.
Sec.A2254.0031.AAINDEMNIFICATION. A state governmental
entity may require a contractor selected under this subchapter to
indemnify or hold harmless the state from claims and liabilities
resulting from the negligent acts or omissions of the contractor or
persons employed by the contractor. A state governmental entity
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may not require a contractor to indemnify or hold harmless the state
for claims or liabilities resulting from the negligent acts or
omissions of the state governmental entity or its employees.
Added by Acts 1999, 76th Leg., ch. 1499, Sec. 1.37, eff. Sept. 1,
1999.
Sec.A2254.004.AACONTRACT FOR PROFESSIONAL SERVICES OF
ARCHITECT, ENGINEER, OR SURVEYOR. (a) In procuring architectural,
engineering, or land surveying services, a governmental entity
shall:
(1)AAfirst select the most highly qualified provider of
those services on the basis of demonstrated competence and
qualifications; and
(2)AAthen attempt to negotiate with that provider a
contract at a fair and reasonable price.
(b)AAIf a satisfactory contract cannot be negotiated with the
most highly qualified provider of architectural, engineering, or
land surveying services, the entity shall:
(1)AAformally end negotiations with that provider;
(2)AAselect the next most highly qualified provider;
and
(3)AAattempt to negotiate a contract with that provider
at a fair and reasonable price.
(c)AAThe entity shall continue the process described in
Subsection (b) to select and negotiate with providers until a
contract is entered into.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 1997, 75th Leg., ch. 119, Sec. 1, eff. Sept. 1,
1997.
Sec.A2254.005.AAVOID CONTRACT. A contract entered into or an
arrangement made in violation of this subchapter is void as against
public policy.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Sec.A2254.006.AACONTRACT NOTIFICATION. A state agency,
including an institution of higher education as defined by Section
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61.003, Education Code, shall provide written notice to the
Legislative Budget Board of a contract for professional services,
other than a contract for physician or optometric services, if the
amount of the contract, including an amendment, modification,
renewal, or extension of the contract, exceeds $14,000. The notice
must be on a form prescribed by the Legislative Budget Board and
filed not later than the 10th day after the date the agency enters
into the contract.
Added by Acts 1999, 76th Leg., ch. 281, Sec. 13, eff. Sept. 1, 1999.
Sec. 2254.007.AADECLARATORY OR INJUNCTIVE RELIEF. (a) This
subchapter may be enforced through an action for declaratory or
injunctive relief filed not later than the 10th day after the date a
contract is awarded.
(b)AAThis section does not apply to the enforcement of a
contract entered into by a state agency as that term is definedAA by
Section 2151.002.AAIn this subsection, "state agency" includes the
Texas Building and Procurement Commission.
Added by Acts 2007, 80th Leg., R.S., Ch. 1213 (H.B.1886), Sec. 13,
eff. September 1, 2007.
SUBCHAPTER B. CONSULTING SERVICES
Sec.A2254.021.AADEFINITIONS. In this subchapter:
(1)AA"Consulting service" means the service of studying
or advising a state agency under a contract that does not involve
the traditional relationship of employer and employee.
(2)AA"Major consulting services contract" means a
consulting services contract for which it is reasonably foreseeable
that the value of the contract will exceed $15,000, or $25,000 for
an institution of higher education other than a public junior
college.
(3)AA"Consultant" means a person that provides or
proposes to provide a consulting service. The term includes a
political subdivision but does not include the federal government,
a state agency, or a state governmental entity.
(4)AA"Political subdivision" means:
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(A)AAa county;
(B)AAan incorporated or unincorporated
municipality;
(C)AAa public junior college;
(D)AAa public school district or other educational
or rehabilitative district;
(E)AAa metropolitan or regional transit
authority;
(F)AAan airport authority;
(G)AAa river authority or compact;
(H)AAa regional planning commission, a council of
governments, or a similar regional planning agency created under
Chapter 391, Local Government Code;
(I)AAthe Edwards Aquifer Authority or a district
governed by Title 4, Water Code;
(J)AAa soil and water conservation district;
(K)AAa county or municipal improvement district;
(L)AAa county road or road utility district;
(M)AAa county housing authority;
(N)AAan emergency services or communications
district;
(O)AAa fire prevention district;
(P)AAa public health or hospital authority or
district;
(Q)AAa mosquito control district;
(R)AAa special waste district;
(S)AAa rural rail transportation district; or
(T)AAany other local government or special
district of this state.
(5)AA"State agency" has the meaning assigned by Section
2151.002.
(6)AA"State governmental entity" means a state
department, commission, board, office, institution, facility, or
other agency the jurisdiction of which is not limited to a
geographical portion of the state. The term includes a university
system and an institution of higher education, other than a public
junior college, as defined by Section 61.003, Education Code. The
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term does not include a political subdivision.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.44(a), eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 165, Sec. 17.19(11), eff. Sept. 1,
1997; Acts 1997, 75th Leg., ch. 1035, Sec. 3, eff. June 19, 1997;
Acts 2003, 78th Leg., ch. 1266, Sec. 1.02, eff. June 20, 2003.
Sec.A2254.022.AAINTERPRETATION OF SUBCHAPTER. (a) This
subchapter shall be interpreted to ensure:
(1)AAthe greatest and fairest competition in the
selection by state agencies of consultants; and
(2)AAthe giving of notice to all potential consultants
of the need for and opportunity to provide consulting services.
(b)AAThis subchapter does not:
(1)AAdiscourage state agencies from using consultants
if the agencies reasonably foresee that the use of consultants will
produce a more efficient and less costly operation or project;
(2)AAprohibit the making of a sole-source contract for
consulting services if a proposal is not received from a competent,
knowledgeable, and qualified consultant at a reasonable fee, after
compliance with this subchapter; or
(3)AArequire or prohibit the use of competitive bidding
procedures to purchase consulting services.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 1997, 75th Leg., ch. 1035, Sec. 4, eff. June 19,
1997.
Sec.A2254.023.AAAPPLICABILITY OF SUBCHAPTER. This
subchapter applies to consulting services that a state agency
acquires with money:
(1)AAappropriated by the legislature;
(2)AAderived from the exercise of the statutory duties
of a state agency; or
(3)AAreceived from the federal government, unless a
federal law or regulation conflicts with the application of this
subchapter.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
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Sec.A2254.024.AAEXEMPTIONS. (a) This subchapter does not
apply to or discourage the use of consulting services provided by:
(1)AApractitioners of professional services described
in Subchapter A;
(2)AAprivate legal counsel;
(3)AAinvestment counselors;
(4)AAactuaries;
(5)AAmedical or dental services providers; or
(6)AAother consultants whose services are determined by
the governing board of a retirement system trust fund to be
necessary for the governing board to perform its constitutional
fiduciary duties, except that the governing board shall comply with
Section 2254.030.
(b)AAIf the governor and comptroller consider it more
advantageous to the state to procure a particular consulting
service under the procedures of Chapters 2155-2158, instead of
under this subchapter, they may make a memorandum of understanding
to that effect and each adopt the memorandum by rule.AAProcurement
of a consulting service described in a memorandum of understanding
under this subsection is subject only to Chapters 2155-2158.
(c)AAThe comptroller by rule may define circumstances in
which a state agency may procure, without complying with this
subchapter, certain consulting services that will cost less than a
minimum amount established by the comptroller. The comptroller
must determine that noncompliance in those circumstances is more
cost-effective for the state.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 1997, 75th Leg., ch. 165, Sec. 17.19(1), eff. Sept.
1, 1997.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 937 (H.B.3560), Sec. 3.14,
eff. September 1, 2007.
Sec.A2254.025.AAEMERGENCY WAIVER. (a) The governor, after
receipt of a request complying with this section, may grant a
limited waiver of the provisions of this subchapter for a state
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agency that requires consulting services before compliance with
this subchapter can be completed because of an unforeseen
emergency.
(b)AAA state agency ’s request for a waiver must include
information required by the governor, including:
(1)AAinformation about the nature of the emergency;
(2)AAthe reason that the state agency did not foresee
the emergency;
(3)AAthe name of the consultant with whom the agency
intends to contract; and
(4)AAthe amount of the intended contract.
(c)AAAs soon as possible after the governor grants a limited
waiver, a state agency shall comply with this subchapter to the
extent that the requirements of this subchapter are not superfluous
or ineffective because of the waiver. The agency shall include with
information filed with the secretary of state for publication in
the Texas Register a detailed description of the emergency on which
the request for waiver was predicated.
(d)AAThe governor shall adopt rules to administer this
section.
(e)AAIn this section, "unforeseen emergency" means a
situation that suddenly and unexpectedly causes a state agency to
need the services of a consultant. The term includes the issuance
of a court order, an actual or imminent natural disaster, and new
state or federal legislation. An emergency is not unforeseen if a
state agency was negligent in foreseeing the occurrence of the
emergency.
(f)AAThis section applies to all consulting services
contracts and renewals, amendments, and extensions of consulting
services contracts.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 1997, 75th Leg., ch. 1035, Sec. 5, eff. June 19,
1997.
Sec.A2254.026.AACONTRACT WITH CONSULTANT. A state agency
may contract with a consultant only if:
(1)AAthere is a substantial need for the consulting
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services; and
(2)AAthe agency cannot adequately perform the services
with its own personnel or obtain the consulting services through a
contract with a state governmental entity.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 1997, 75th Leg., ch. 1035, Sec. 6, eff. June 19,
1997.
Sec.A2254.027.AASELECTION OF CONSULTANT. In selecting a
consultant, a state agency shall:
(1)AAbase its choice on demonstrated competence,
knowledge, and qualifications and on the reasonableness of the
proposed fee for the services; and
(2)AAif other considerations are equal, give preference
to a consultant whose principal place of business is in the state or
who will manage the consulting contract wholly from an office in the
state.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 1997, 75th Leg., ch. 1035, Sec. 7, eff. June 19,
1997.
Sec.A2254.028.AANOTICE OF INTENT: MAJOR CONSULTING SERVICES
CONTRACT. (a) Before entering into a major consulting services
contract, a state agency shall:
(1)AAnotify the Legislative Budget Board and the
governor ’s Budget and Planning Office that the agency intends to
contract with a consultant;
(2)AAgive information to the Legislative Budget Board
and the governor ’s Budget and Planning Office to demonstrate that
the agency has complied or will comply with Sections 2254.026 and
2254.027; and
(3)AAobtain a finding of fact from the governor ’s Budget
and Planning Office that the consulting services are necessary.
(b)AAA major consulting services contract that a state agency
enters into without first obtaining the finding required by
Subsection (a)(3) is void.
(c)AASubsection (a) does not apply to a major consulting
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services contract to be entered into by an institution of higher
education other than a public junior college if the institution
includes in the invitation published under Section 2254.029 a
finding by the chief executive officer of the institution that the
consulting services are necessary and an explanation of that
finding.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 1997, 75th Leg., ch. 1035, Sec. 8, eff. June 19,
1997; Acts 2003, 78th Leg., ch. 1266, Sec. 1.03, eff. June 20,
2003.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 1049 (S.B.5), Sec. 6.10, eff.
June 17, 2011.
Sec.A2254.029.AAPUBLICATION IN TEXAS REGISTER BEFORE
ENTERING INTO MAJOR CONSULTING SERVICES CONTRACT. (a) Not later
than the 30th day before the date it enters into a major consulting
services contract, a state agency shall file with the secretary of
state for publication in the Texas Register:
(1)AAan invitation for consultants to provide offers of
consulting services;
(2)AAthe name of the individual who should be contacted
by a consultant that intends to make an offer;
(3)AAthe closing date for the receipt of offers; and
(4)AAthe procedure by which the state agency will award
the contract.
(b)AAIf the consulting services sought by a state agency
relate to services previously provided by a consultant, the agency
shall disclose that fact in the invitation required by Subsection
(a). If the state agency intends to award the contract for the
consulting services to a consultant that previously provided the
services, unless a better offer is received, the agency shall
disclose its intention in the invitation required by Subsection
(a).
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 1997, 75th Leg., ch. 1035, Sec. 9, eff. June 19,
1997.
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Sec.A2254.030.AAPUBLICATION IN TEXAS REGISTER AFTER ENTERING
INTO MAJOR CONSULTING SERVICES CONTRACT. Not later than the 20th
day after the date of entering into a major consulting services
contract, the contracting state agency shall file with the
secretary of state for publication in the Texas Register:
(1)AAa description of the activities that the
consultant will conduct;
(2)AAthe name and business address of the consultant;
(3)AAthe total value and the beginning and ending dates
of the contract; and
(4)AAthe dates on which documents, films, recordings,
or reports that the consultant is required to present to the agency
are due.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 1997, 75th Leg., ch. 1035, Sec. 10, eff. June 19,
1997; Acts 1999, 76th Leg., ch. 1467, Sec. 1.30, eff. Sept. 1,
1999.
Sec. 2254.0301.AACONTRACT NOTIFICATION. (a)AAA state agency
shall provide written notice to the Legislative Budget Board of a
contract for consulting services if the amount of the contract,
including an amendment, modification, renewal, or extension of the
contract, exceeds $14,000.AAThe notice must be on a form prescribed
by the Legislative Budget Board and filed not later than the 10th
day after the date the entity enters into the contract.
(b)AAThis section does not apply to a university system or
institution of higher education.AAIn this subsection, "institution
of higher education" and "university system" have the meanings
assigned by Section 61.003, Education Code.
Added by Acts 1999, 76th Leg., ch. 281, Sec. 14, eff. Sept. 1, 1999.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 1049 (S.B.5), Sec. 6.11, eff.
June 17, 2011.
Sec.A2254.031.AARENEWAL; AMENDMENT; EXTENSION. (a) A
state agency that intends to renew a major consulting services
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contract shall:
(1)AAfile with the secretary of state for publication
in the Texas Register the information required by Section 2254.030
not later than the 20th day after the date the contract is renewed
if the renewal contract is not a major consulting services
contract; or
(2)AAcomply with Sections 2254.028 and 2254.029 if the
renewal contract is a major consulting services contract.
(b)AAA state agency that intends to renew a contract that is
not a major consulting services contract shall comply with Sections
2254.028 and 2254.029 if the original contract and the renewal
contract have a reasonably foreseeable value totaling more than
$15,000, or $25,000 for an institution of higher education other
than a public junior college.
(c)AAA state agency that intends to amend or extend a major
consulting services contract shall:
(1)AAnot later than the 20th day after the date the
contract is amended or extended, file the information required by
Section 2254.030 with the secretary of state for publication in the
Texas Register if the contract after the amendment or extension is
not a major consulting services contract; or
(2)AAcomply with Sections 2254.028 and 2254.029 if the
contract after the amendment or extension is a major consulting
services contract.
(d)AAA state agency that intends to amend or extend a
contract that is not a major consulting services contract shall
comply with Sections 2254.028 and 2254.029 if the original contract
and the amendment or extension have a reasonably foreseeable value
totaling more than $15,000, or $25,000 for an institution of higher
education other than a public junior college.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 1997, 75th Leg., ch. 1035, Sec. 11, eff. June 19,
1997; Acts 1999, 76th Leg., ch. 1467, Sec. 1.31, eff. Sept. 1,
1999; Acts 2003, 78th Leg., ch. 1266, Sec. 1.04, eff. June 20,
2003.
Sec.A2254.032.AACONFLICTS OF INTEREST. (a) An officer or
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employee of a state agency shall report to the chief executive of
the agency, not later than the 10th day after the date on which a
private consultant submits an offer to provide consulting services
to the agency, any financial interest that:
(1)AAthe officer or employee has in the private
consultant who submitted the offer; or
(2)AAan individual who is related to the officer or
employee within the second degree by consanguinity or affinity, as
determined under Chapter 573, has in the private consultant who
submitted the offer.
(b)AAThis section applies to all consulting services
contracts and renewals, amendments, and extensions of consulting
services contracts.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Sec.A2254.033.AARESTRICTION ON FORMER EMPLOYEES OF A STATE
AGENCY. (a) An individual who offers to provide consulting
services to a state agency and who has been employed by that agency
or by another agency at any time during the two years preceding the
making of the offer shall disclose in the offer:
(1)AAthe nature of the previous employment with the
agency or the other agency;
(2)AAthe date the employment was terminated; and
(3)AAthe annual rate of compensation for the employment
at the time of its termination.
(b)AAA state agency that accepts an offer from an individual
described in Subsection (a) shall include in the information filed
under Section 2254.030 a statement about the individual ’s previous
employment and the nature of the employment.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Sec.A2254.034.AACONTRACT VOID. (a) A contract entered into
in violation of Sections 2254.029 through 2254.031 is void.
(b)AAA contract entered into with a private consultant who
did not comply with Section 2254.033 is void.
(c)AAIf a contract is void under this section:
(1)AAthe comptroller may not draw a warrant or transmit
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money to satisfy an obligation under the contract; and
(2)AAa state agency may not make any payment under the
contract with state or federal money or money held in or outside the
state treasury.
(d)AAThis section applies to all consulting services
contracts, including renewals, amendments, and extensions of
consulting services contracts.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 1999, 76th Leg., ch. 1467, Sec. 1.32, eff. June 19,
1999.
Sec.A2254.035.AADIVIDING CONTRACTS. (a) A state agency may
not divide a consulting services contract into more than one
contract to avoid the requirements of this subchapter.
(b)AAThis section applies to all consulting services
contracts, including renewals, amendments, and extensions of
consulting services contracts.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Sec.A2254.036.AAARCHIVES. (a) On request, a state agency
shall, after the agency ’s contract with a consultant has ended,
supply the Legislative Budget Board and the governor ’s Budget and
Planning Office with copies of all documents, films, recordings, or
reports compiled by the consultant under the contract.
(b)AACopies of all documents, films, recordings, or reports
compiled by the consultant shall be filed with the Texas State
Library and shall be retained by the library for at least five
years.
(c)AAThe Texas State Library shall list each document, film,
recording, and report given to it under Subsection (b) and shall
file the list at the end of each calendar quarter with the secretary
of state for publication in the Texas Register.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 1997, 75th Leg., ch. 1035, Sec. 12, eff. June 19,
1997.
Sec.A2254.037.AAREPORTS. As part of the biennial budgetary
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hearing process conducted by the Legislative Budget Board and the
governor ’s Budget and Planning Office, a state agency shall report
to the Legislative Budget Board and the governor ’s Budget and
Planning Office on any actions taken in response to the
recommendations of any consultant with whom the state agency
contracts during the previous biennium.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 1997, 75th Leg., ch. 1035, Sec. 13, eff. June 19,
1997.
Sec.A2254.038.AAMIXED CONTRACTS. This subchapter applies to
a contract that involves both consulting and other services if the
primary objective of the contract is the acquisition of consulting
services.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Sec.A2254.039.AACOMPTROLLER ’S RULES. (a) The comptroller
shall adopt rules to implement and administer this subchapter. The
comptroller ’s rules may not conflict with or cover a matter on which
this subchapter authorizes the governor to adopt rules.
(b)AAThe comptroller shall give proposed rules to the
governor for review and comment before adopting the rules.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 937 (H.B.3560), Sec. 3.15,
eff. September 1, 2007.
Sec. 2254.040.AAPROCUREMENT BY COMPTROLLER. (a) The
comptroller may, on request of a state agency, procure for the
agency consulting services that are covered by this subchapter.
(b)AAThe comptroller may require reimbursement for the costs
it incurs in procuring the services.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 1999, 76th Leg., ch. 426, Sec. 16, eff. June 18,
1999.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 937 (H.B.3560), Sec. 1.75,
15
eff. September 1, 2007.
Sec. 2254.041.AADISTRIBUTION OF CONSULTANT REPORTS. (a)AAA
consulting services contract must include provisions that allow the
state agency contracting with the consultant and any other state
agency and the legislature, at the contracting state agency ’s
discretion, to distribute the consultant report, if any, and to
post the report on the agency ’s Internet website or the website of a
standing committee of the legislature.
(b)AAThis section does not affect the application of Chapter
552 to a consultant ’s report.
Added by Acts 2013, 83rd Leg., R.S., Ch. 1151 (S.B.176), Sec. 1,
eff. June 14, 2013.
SUBCHAPTER C. CONTINGENT FEE CONTRACT FOR LEGAL SERVICES
Sec.A2254.101.AADEFINITIONS. In this subchapter:
(1)AA"Contingent fee" means that part of a fee for legal
services, under a contingent fee contract, the amount or payment of
which is contingent on the outcome of the matter for which the
services were obtained.
(2)AA"Contingent fee contract" means a contract for
legal services under which the amount or the payment of the fee for
the services is contingent in whole or in part on the outcome of the
matter for which the services were obtained.
(3)AA"State governmental entity":
(A)AAmeans the state or a board, commission,
department, office, or other agency in the executive branch of
state government created under the constitution or a statute of the
state, including an institution of higher education as defined by
Section 61.003, Education Code;
(B)AAincludes the state when a state officer is
bringing a parens patriae proceeding in the name of the state; and
(C)AAdoes not include a state agency or state
officer acting as a receiver, special deputy receiver, liquidator,
or liquidating agent in connection with the administration of the
assets of an insolvent entity under Article 21.28, Insurance Code,
16
or Chapter 36,66,96, or 126, Finance Code.
Added by Acts 1999, 76th Leg., ch. 1499, Sec. 3.03, eff. Sept. 1,
1999.
Sec.A2254.102.AAAPPLICABILITY. (a) This subchapter applies
only to a contingent fee contract for legal services entered into by
a state governmental entity.
(b)AAThe legislature by this subchapter is providing, in
accordance with Section 44, Article III, Texas Constitution, for
the manner in which and the situations under which a state
governmental entity may compensate a public contractor under a
contingent fee contract for legal services.
(c)AAThis subchapter does not apply to a contract:
(1)AAwith a state agency to collect an obligation under
Section 2107.003(b), (c), or (c-1); or
(2)AAfor legal services entered into by an institution
of higher education under Section 153.006, Education Code.
(d)AAThis subchapter does not apply to a contract for legal
services entered into by the Teacher Retirement System of Texas if
the services are paid for from money that is not appropriated from
the general revenue fund, including funds of a trust administered
by the retirement system.
Added by Acts 1999, 76th Leg., ch. 1499, Sec. 3.03, eff. Sept. 1,
1999. Amended by Acts 2003, 78th Leg., ch. 1266, Sec. 1.13, eff.
June 20, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 1359 (S.B.1691), Sec. 31, eff.
September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 1386 (S.B.1615), Sec. 3, eff.
September 1, 2007.
Sec.A2254.103.AACONTRACT APPROVAL; SIGNATURE. (a) A state
governmental entity that has authority to enter into a contract for
legal services in its own name may enter into a contingent fee
contract for legal services only if:
(1)AAthe governing body of the state governmental
entity approves the contract and the approved contract is signed by
17
the presiding officer of the governing body; or
(2)AAfor an entity that is not governed by a multimember
governing body, the elected or appointed officer who governs the
entity approves and signs the contract.
(b)AAThe attorney general may enter into a contingent fee
contract for legal services in the name of the state in relation to
a matter that has been referred to the attorney general under law by
another state governmental entity only if the other state
governmental entity approves and signs the contract in accordance
with Subsection (a).
(c)AAA state governmental entity, including the state, may
enter into a contingent fee contract for legal services that is not
described by Subsection (a) or (b) only if the governor approves and
signs the contract.
(d)AABefore approving the contract, the governing body,
elected or appointed officer, or governor, as appropriate, must
find that:
(1)AAthere is a substantial need for the legal
services;
(2)AAthe legal services cannot be adequately performed
by the attorneys and supporting personnel of the state governmental
entity or by the attorneys and supporting personnel of another
state governmental entity; and
(3)AAthe legal services cannot reasonably be obtained
from attorneys in private practice under a contract providing only
for the payment of hourly fees, without regard to the outcome of the
matter, because of the nature of the matter for which the services
will be obtained or because the state governmental entity does not
have appropriated funds available to pay the estimated amounts
required under a contract providing only for the payment of hourly
fees.
(e)AABefore entering into a contingent fee contract for legal
services in which the estimated amount that may be recovered
exceeds $100,000, a state governmental entity that proposes to
enter into the contract in its own name or in the name of the state
must also notify the Legislative Budget Board that the entity
proposes to enter into the contract, send the board copies of the
18
proposed contract, and send the board information demonstrating
that the conditions required by Subsection (d)(3) exist. If the
state governmental entity finds under Subsection (d)(3) that the
state governmental entity does not have appropriated funds
available to pay the estimated amounts required under a contract
for the legal services providing only for the payment of hourly
fees, the state governmental entity may not enter into the proposed
contract in its own name or in the name of the state unless the
Legislative Budget Board finds that the state governmental entity ’s
finding with regard to available appropriated funds is correct.
(f)AAA contingent fee contract for legal services that is
subject to Subsection (e) and requires a finding by the Legislative
Budget Board is void unless the board has made the finding required
by Subsection (e).
Added by Acts 1999, 76th Leg., ch. 1499, Sec. 3.03, eff. Sept. 1,
1999.
Sec.A2254.104.AATIME AND EXPENSE RECORDS REQUIRED; FINAL
STATEMENT. (a) The contract must require that the contracting
attorney or law firm keep current and complete written time and
expense records that describe in detail the time and money spent
each day in performing the contract.
(b)AAThe contracting attorney or law firm shall permit the
governing body or governing officer of the state governmental
entity, the attorney general, and the state auditor each to inspect
or obtain copies of the time and expense records at any time on
request.
(c)AAOn conclusion of the matter for which legal services
were obtained, the contracting attorney or law firm shall provide
the contracting state governmental entity with a complete written
statement that describes the outcome of the matter, states the
amount of any recovery, shows the contracting attorney ’s or law
firm ’s computation of the amount of the contingent fee, and
contains the final complete time and expense records required by
Subsection (a). The complete written statement required by this
subsection is public information under Chapter 552 and may not be
withheld from a requestor under that chapter under Section 552.103
19
or any other exception from required disclosure.
(d)AAThis subsection does not apply to the complete written
statement required by Subsection (c). All time and expense records
required under this section are public information subject to
required public disclosure under Chapter 552. Information in the
records may be withheld from a member of the public under Section
552.103 only if, in addition to meeting the requirements of Section
552.103, the chief legal officer or employee of the state
governmental entity determines that withholding the information is
necessary to protect the entity ’s strategy or position in pending
or reasonably anticipated litigation. Information withheld from
public disclosure under this subsection shall be segregated from
information that is subject to required public disclosure.
Added by Acts 1999, 76th Leg., ch. 1499, Sec. 3.03, eff. Sept. 1,
1999.
Sec.A2254.105.AACERTAIN GENERAL CONTRACT REQUIREMENTS. The
contract must:
(1)AAprovide for the method by which the contingent fee
is computed;
(2)AAstate the differences, if any, in the method by
which the contingent fee is computed if the matter is settled,
tried, or tried and appealed;
(3)AAstate how litigation and other expenses will be
paid and, if reimbursement of any expense is contingent on the
outcome of the matter or reimbursable from the amount recovered in
the matter, state whether the amount recovered for purposes of the
contingent fee computation is considered to be the amount obtained
before or after expenses are deducted;
(4)AAstate that any subcontracted legal or support
services performed by a person who is not a contracting attorney or
a partner, shareholder, or employee of a contracting attorney or
law firm is an expense subject to reimbursement only in accordance
with this subchapter; and
(5)AAstate that the amount of the contingent fee and
reimbursement of expenses under the contract will be paid and
limited in accordance with this subchapter.
20
Added by Acts 1999, 76th Leg., ch. 1499, Sec. 3.03, eff. Sept. 1,
1999.
Sec.A2254.106.AACONTRACT REQUIREMENTS: COMPUTATION OF
CONTINGENT FEE; REIMBURSEMENT OF EXPENSES. (a) The contract must
establish the reasonable hourly rate for work performed by an
attorney, law clerk, or paralegal who will perform legal or support
services under the contract based on the reasonable and customary
rate in the relevant locality for the type of work performed and on
the relevant experience, demonstrated ability, and standard hourly
billing rate, if any, of the person performing the work. The
contract may establish the reasonable hourly rate for one or more
persons by name and may establish a rate schedule for work performed
by unnamed persons. The highest hourly rate for a named person or
under a rate schedule may not exceed $1,000 an hour. This
subsection applies to subcontracted work performed by an attorney,
law clerk, or paralegal who is not a contracting attorney or a
partner, shareholder, or employee of a contracting attorney or law
firm as well as to work performed by a contracting attorney or by a
partner, shareholder, or employee of a contracting attorney or law
firm.
(b)AAThe contract must establish a base fee to be computed as
follows. For each attorney, law clerk, or paralegal who is a
contracting attorney or a partner, shareholder, or employee of a
contracting attorney or law firm, multiply the number of hours the
attorney, law clerk, or paralegal works in providing legal or
support services under the contract times the reasonable hourly
rate for the work performed by that attorney, law clerk, or
paralegal. Add the resulting amounts to obtain the base fee. The
computation of the base fee may not include hours or costs
attributable to work performed by a person who is not a contracting
attorney or a partner, shareholder, or employee of a contracting
attorney or law firm.
(c)AASubject to Subsection (d), the contingent fee is
computed by multiplying the base fee by a multiplier. The contract
must establish a reasonable multiplier based on any expected
difficulties in performing the contract, the amount of expenses
21
expected to be risked by the contractor, the expected risk of no
recovery, and any expected long delay in recovery. The multiplier
may not exceed four without prior approval by the legislature.
(d)AAIn addition to establishing the method of computing the
fee under Subsections (a), (b), and (c), the contract must limit the
amount of the contingent fee to a stated percentage of the amount
recovered. The contract may state different percentage limitations
for different ranges of possible recoveries and different
percentage limitations in the event the matter is settled, tried,
or tried and appealed. The percentage limitation may not exceed 35
percent without prior approval by the legislature. The contract
must state that the amount of the contingent fee will not exceed the
lesser of the stated percentage of the amount recovered or the
amount computed under Subsections (a), (b), and (c).
(e)AAThe contract also may:
(1)AAlimit the amount of expenses that may be
reimbursed; and
(2)AAprovide that the amount or payment of only part of
the fee is contingent on the outcome of the matter for which the
services were obtained, with the amount and payment of the
remainder of the fee payable on a regular hourly rate basis without
regard to the outcome of the matter.
(f)AAExcept as provided by Section 2254.107, this section
does not apply to a contingent fee contract for legal services:
(1)AAin which the expected amount to be recovered and
the actual amount recovered do not exceed $100,000; or
(2)AAunder which a series of recoveries is contemplated
and the amount of each individual recovery is not expected to and
does not exceed $100,000.
(g)AAThis section applies to a contract described by
Subsection (f) for each individual recovery under the contract that
actually exceeds $100,000, and the contract must provide for
computing the fee in accordance with this section for each
individual recovery that actually exceeds $100,000.
Added by Acts 1999, 76th Leg., ch. 1499, Sec. 3.03, eff. Sept. 1,
1999.
22
Sec.A2254.107.AAMIXED HOURLY AND CONTINGENT FEE CONTRACTS;
REIMBURSEMENT FOR SUBCONTRACTED WORK. (a) This section applies
only to a contingent fee contract:
(1)AAunder which the amount or payment of only part of
the fee is contingent on the outcome of the matter for which the
services were obtained, with the amount and payment of the
remainder of the fee payable on a regular hourly rate basis without
regard to the outcome of the matter; or
(2)AAunder which reimbursable expenses are incurred for
subcontracted legal or support services performed by a person who
is not a contracting attorney or a partner, shareholder, or
employee of a contracting attorney or law firm.
(b)AASections 2254.106(a) and (e) apply to the contract
without regard to the expected or actual amount of recovery under
the contract.
(c)AAThe limitations prescribed by Section 2254.106 on the
amount of the contingent fee apply to the entire amount of the fee
under the contingent fee contract, including the part of the fee the
amount and payment of which is not contingent on the outcome of the
matter.
(d)AAThe limitations prescribed by Section 2254.108 on
payment of the fee apply only to payment of the contingent portion
of the fee.
Added by Acts 1999, 76th Leg., ch. 1499, Sec. 3.03, eff. Sept. 1,
1999.
Sec.A2254.108.AAFEE PAYMENT AND EXPENSE REIMBURSEMENT. (a)
Except as provided by Subsection (b), a contingent fee and a
reimbursement of an expense under a contract with a state
governmental entity is payable only from funds the legislature
specifically appropriates to pay the fee or reimburse the expense.
An appropriation to pay the fee or reimburse the expense must
specifically describe the individual contract, or the class of
contracts classified by subject matter, on account of which the fee
is payable or expense is reimbursable. A general reference to
contingent fee contracts for legal services or to contracts subject
to this subchapter or a similar general description is not a
23
sufficient description for purposes of this subsection.
(b)AAIf the legislature has not specifically appropriated
funds for paying the fee or reimbursing the expense, a state
governmental entity may pay the fee or reimburse the expense from
other available funds only if:
(1)AAthe legislature is not in session; and
(2)AAthe Legislative Budget Board gives its prior
approval for that payment or reimbursement under Section 69,
Article XVI, Texas Constitution, after examining the statement
required under Section 2254.104(c) and determining that the
requested payment and the contract under which payment is requested
meet all the requirements of this subchapter.
(c)AAA payment or reimbursement under the contract may not be
made until:
(1)AAfinal and unappealable arrangements have been made
for depositing all recovered funds to the credit of the appropriate
fund or account in the state treasury; and
(2)AAthe state governmental entity and the state
auditor have received from the contracting attorney or law firm the
statement required under Section 2254.104(c).
(d)AALitigation and other expenses payable under the
contract, including expenses attributable to attorney, paralegal,
accountant, expert, or other professional work performed by a
person who is not a contracting attorney or a partner, shareholder,
or employee of a contracting attorney or law firm, may be reimbursed
only if the state governmental entity and the state auditor
determine that the expenses were reasonable, proper, necessary,
actually incurred on behalf of the state governmental entity, and
paid for by the contracting attorney or law firm. The contingent
fee may not be paid until the state auditor has reviewed the
relevant time and expense records and verified that the hours of
work on which the fee computation is based were actually worked in
performing reasonable and necessary services for the state
governmental entity under the contract.
Added by Acts 1999, 76th Leg., ch. 1499, Sec. 3.03, eff. Sept. 1,
1999.
24
Sec.A2254.109.AAEFFECT ON OTHER LAW. (a) This subchapter
does not limit the right of a state governmental entity to recover
fees and expenses from opposing parties under other law.
(b)AACompliance with this subchapter does not relieve a
contracting attorney or law firm of an obligation or responsibility
under other law, including under the Texas Disciplinary Rules of
Professional Conduct.
(c)AAA state officer, employee, or governing body, including
the attorney general, may not waive the requirements of this
subchapter or prejudice the interests of the state under this
subchapter. This subchapter does not waive the state ’s sovereign
immunity from suit or its immunity from suit in federal court under
the Eleventh Amendment to the federal constitution.
Added by Acts 1999, 76th Leg., ch. 1499, Sec. 3.03, eff. Sept. 1,
1999.
SUBCHAPTER D. OUTSIDE LEGAL SERVICES
Sec.A2254.151.AADEFINITION. In this subchapter, "state
agency" means a department, commission, board, authority, office,
or other agency in the executive branch of state government created
by the state constitution or a state statute.
Added by Acts 2003, 78th Leg., ch. 309, Sec. 7.18, eff. June 18,
2003.
Sec.A2254.152.AAAPPLICABILITY. This subchapter does not
apply to a contingent fee contract for legal services.
Added by Acts 2003, 78th Leg., ch. 309, Sec. 7.18, eff. June 18,
2003.
Sec.A2254.153.AACONTRACTS FOR LEGAL SERVICES AUTHORIZED.
Subject to Section 402.0212, a state agency may contract for
outside legal services.
Added by Acts 2003, 78th Leg., ch. 309, Sec. 7.18, eff. June 18,
2003.
Sec.A2254.154.AAATTORNEY GENERAL; COMPETITIVE PROCUREMENT.
25
The attorney general may require state agencies to obtain outside
legal services through a competitive procurement process, under
conditions prescribed by the attorney general.
Added by Acts 2003, 78th Leg., ch. 309, Sec. 7.18, eff. June 18,
2003.
26
Page 1
AGREEMENT FOR ENGINEERING SERVICES
THIS AGREEMENT is made this _____ day of ____________, 2020 by and
between the City of Southlake, Texas (hereinafter referred to as “CITY”), and Alpha
Testing, Inc. (hereinafter referred to as “ENGINEER”).
WHEREAS, CITY contemplates the need for construction materials testing
services. This project is to be known as the Fuel Farm Water Line Extension project
and hereinafter referred to as the “Project”.
WHEREAS, ENGINEER is qualified, able, and desirous of performing the
necessary engineering work upon which the Project is based and is willing and able to
work with CITY staff to organize and coordinate the professional services necessary to
complete the Project.
NOW, THEREFORE, CITY engages ENGINEER to perform, and ENGINEER
agrees to perform, the engineering work for the Project, as more fully described herein
below, and CITY agrees to pay as compensation, and ENGINEER agrees to accept as
compensation, the payments on the dates and in the amounts herein specified, all in
accordance with the terms more fully set out below and as provided in Attachment A
which is attached hereto and incorporated by reference as if fully set forth herein.
I. ARTICLE
ENGINEERING SERVICES
A. Scope of Work
ENGINEER will provide the supervision, direction, personnel and equipment to
perform the engineering Services outlined in Attachment A in accordance with the terms
set forth in this Agreement and in Attachment A.
B. Definitions
Services refer to the professional services performed by ENGINEER pursuant to
this Agreement.
C. Changes
CITY, without invalidating the Agreement, may order changes within the general
scope of the work required by the Agreement by altering, adding to and/or deducting
from the work to be performed. If any change causes an increase or decrease in
ENGINEER’s cost of, or the time required for, the performance of any part of the
Services under the Agreement, an equitable adjustment will be made by mutual
agreement and this Agreement shall be modified in writing accordingly.
Attachment B
Page 2
D. Coordination with Owner
The CITY shall make available to ENGINEER for use in performing Services
hereunder all existing plans, maps, field notes, statistics computations and other data in
the CITY’s possession relative to existing facilities and to the Project.
E. Site and Local Conditions
ENGINEER has the right to examine the site in order to become acquainted with
local conditions and accepts conditions at the site unless otherwise noted in writing to
the CITY. Any coordination or scheduling of work by CITY shall not relieve ENGINEER
from its responsibilities specified hereunder. Necessary arrangement for access to any
site by ENGINEER’s employees will be made with CITY.
F. Assignment and Subcontractors/Third Party Rights
The rights and obligations covered herein are personal to each party hereto and
not to any third party and for this reason neither this Agreement nor any contract
hereunder shall be assigned by either party in whole or in part; nor shall ENGINEER
subcontract any of its obligations under this Agreement without the prior written consent
of CITY.
G. Independent Contractor
ENGINEER covenants and agrees that it will perform the work hereunder as an
independent contractor, and not as an officer, agent, servant, or employee of CITY; that
ENGINEER shall have exclusive control of and exclusive right to control the details of
the work performed hereunder, and all persons performing same, and shall be solely
responsible for the acts and omissions of its officers, agents, employees, contractors,
subcontractors, and consultants; that the doctrine of respondent superior shall not apply
as between CITY and ENGINEER, its officers, agents, employees, contractors,
subcontractors, and consultants, and nothing herein shall be construed as creating a
partnership or joint enterprise between CITY and ENGINEER.
H. Disclosure
By signature of this contract, ENGINEER warrants to CITY that it has made full
disclosure in writing of any existing conflicts of interest or potential conflicts of interest,
including personal financial interests, direct or indirect, in property abutting the proposed
Project and business relations with abutting property owners. ENGINEER further
warrants that it will make disclosure in writing of any conflicts of interest that develop
subsequent to the signing of this contract and prior to final payment under the contract.
Finally, Engineer warrants that it has submitted to the City a completed Conflicts of
Interest Questionnaire as required by Chapter 176 of the Texas Local Government
Code.
Page 3
I.Approval by CITY
Approval by CITY of this Agreement shall not constitute or be deemed to be a
release of the responsibility and liability of ENGINEER, its officers, agents, employees,
and subcontractors for the accuracy and competency of the Services performed under
this Agreement, including but not limited to surveys, designs, working drawings and
specifications and other engineering documents.
Such approval shall not be deemed to be a waiver or an assumption of such
responsibility and liability by CITY for any negligent act, error, or omission in the
performance of ENGINEER’s professional services or in the conduct or preparation of
the subsurface investigations, surveys, designs, working drawings and specifications or
other engineering documents by ENGINEER, its officers, agents, employees and
subcontractors, it being the intent of the parties that approval by CITY signifies the
CITY’s approval of only the general design concept of the Improvements to be
constructed.
J. Indemnification
ENGINEER SHALL AND DOES HEREBY AGREE TO INDEMNIFY AND HOLD
HARMLESS CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM ANY AND
ALL DAMAGES, LOSS OR LIABILITY OF ANY KIND WHATSOEVER, BY REASON
OF DEATH OR INJURY TO PROPERTY OR PERSON CAUSED BY ANY OMISSION
OR NEGLIGENT ACT OF ENGINEER, ITS OFFICERS, AGENTS, EMPLOYEES,
INVITEES, OR OTHER PERSONS FOR WHOM IT IS LEGALLY LIABLE, WITH
REGARD TO THE PERFORMANCE OF THIS CONTRACT, AND ENGINEER WILL, AT
ITS COST AND EXPENSE, DEFEND, PAY ON BEHALF OF, AND PROTECT CITY
AND ITS OFFICERS, AGENTS, AND EMPLOYEES AGAINST ANY AND ALL SUCH
CLAIMS AND DEMANDS. THE PROVISIONS OF THIS SECTION ARE SUBJECT TO
THE LIMITATIONS OF TEXAS LOCAL GOVERNMENT CODE SECTION 271.904 AND
SHALL BE CONSTRUED TO THAT EFFECT.
K. No Third Party Beneficiary
For purposes of this Agreement, including its intended operation and effect, the
parties specifically agree and contract that: (1) this Agreement only affects
matters/disputes between the parties to this Agreement, and is in no way intended by
the parties to benefit or otherwise affect any third person or entity (except the
indemnitees identified or described in Article I, Section J., above), notwithstanding the
fact that such third person or entities may be in a contractual relationship with CITY and
ENGINEER, or both; and (2) the terms of this Agreement are not intended to release,
either by contract or operation of law, any third person or entity from obligations they
owe to either CITY or ENGINEER.
Page 4
L.Successors and Assigns
CITY and ENGINEER each bind themselves and their successors, executors,
administrators and assigns to the other party to this Agreement and to the successors,
executors, administrators and assigns of such other party with respect to all covenants
of this Agreement. Neither CITY nor ENGINEER shall assign or transfer its interest in
this Agreement without prior written consent of the other.
II. ARTICLE
CITY’S RESPONSIBILITIES
CITY will:
1. Provide full information as to CITY’s requirements for the Project;
2. Assist ENGINEER by placing at ENGINEER’s disposal all information in
CITY’s control or knowledge which is pertinent to the Project, including
executed right-of-way easements and final field survey data;
3. Examine all work presented by ENGINEER and respond within
reasonable time and in writing to the material submitted by ENGINEER;
4. Pay all costs incident to advertising for obtaining bids or proposals from
Contractors;
5. Give prompt written notice to ENGINEER whenever CITY observes or
otherwise becomes aware of any defect in ENGINEER’s work or in
Contractor’s work;
6. Designate in writing a person to act as its representative with respect to
this Agreement, such person having complete authority to transmit
instructions, receive information, and make or interpret the CITY’s
decisions;
7. Provide all information and criteria as to the CITY’s requirements,
objectives, and expectations for the Project including all numerical criteria
that are to be met and all standards of development, design, or
construction.
8. Provide to the ENGINEER all previous studies, plans, or other documents
pertaining to the Project and all new data reasonably necessary in the
ENGINEER’s opinion, such as site survey and engineering data,
environmental impact assessments or statements, zoning or other land
use regulations, etc., upon all of which the ENGINEER may rely; and
9. Arrange for access to the site and other private or public property as
required for the ENGINEER to provide its services.
Page 5
III. ARTICLE
COMPENSATION FOR ENGINEERING SERVICES
The CITY shall compensate ENGINEER for services rendered under this
Agreement, in accordance with the following:
For the completion of the work contemplated in Attachment A, the ENGINEER
shall be paid on a time and materials basis in the amount estimated to be $17,300.00
for Materials Testing Services as billed monthly by ENGINEER.
IV. ARTICLE
TIMES OF BILLING AND PAYMENT
The ENGINEER shall bill CITY monthly for any services and expenses incurred
in accordance with the work performed subject to the limits set out in Article III.
Payment shall be due within thirty (30) days of receipt by CITY of a properly prepared
and correct invoice from ENGINEER. ENGINEER’s invoices shall be accompanied by
such records or other written proof as CITY deems necessary to verify the billings.
Invoices shall be made to City Finance Department’s office at 1400 Main Street,
Suite 440, Southlake, Texas 76092.
If CITY fails to make payment due ENGINEER within thirty (30) days of the day
when payment for services and expenses is due under the terms of this Agreement,
ENGINEER shall be entitled to interest on such unpaid sums at the rate provided in
Chapter 2251 of the Texas Government Code.
V. ARTICLE
ADDITIONAL ENGINEERING SERVICES
In addition to performing the engineering services set out in Article I, hereof,
ENGINEER agrees to perform additional services as requested by CITY from time to
time and CITY agrees to compensate ENGINEER for such services in accordance with
ENGINEER’s standard hourly fee and expenses (see Exhibit B) for actual time
expended and actual out-of-pocket sums expended, such services to be one or more of
the following:
1. Make or prepare detailed description of sites, maps, or drawings related
thereto and outside the scope of the Project;
2. Appearances before courts or boards on matters of litigation or hearings
related to the Project;
3. Preparation of environmental impact assessments or statements for any
governmental agency;
Page 6
4. Miscellaneous engineering work for CITY not related to the Project;
5. To provide resident project construction inspection, unless such inspection
is not required, in writing, by the CITY;
6. Other services agreed to by the parties in writing and incorporated herein.
VI. ARTICLE
STANDARD OF CARE
In performing its professional services, the ENGINEER will use that degree of
care and skill ordinarily exercised, under similar circumstances, by reputable members
of its profession in the same locality at the time the services are provided and in
accordance with any applicable governmental laws, regulations and ordinances.
VII. ARTICLE
PERIOD OF SERVICE
This Agreement shall be effective upon execution by CITY and ENGINEER, and
shall remain in force until work is completed on the Project or until terminated under the
provisions hereinafter provided in Article VIII.
VIII. ARTICLE
TERMINATION
The CITY may terminate this Agreement at any time for convenience, with or
without cause by giving written notice to the ENGINEER. Such termination may be
made effective on such future date as agreed by the parties, but absent such
agreement shall be immediate. Upon receipt of such notice the ENGINEER shall
immediately discontinue all services and work and the placing of all orders or the
entering into contracts for supplies, assistance, facilities, and materials in connection
with the performance of this Agreement and shall proceed to cancel promptly all existing
contracts insofar as they are chargeable to this Agreement.
The ENGINEER, upon termination, shall be paid for all services rendered
through the date of termination together with any additional reimbursable expense then
due.
Page 7
IX. ARTICLE
OWNERSHIP OF DOCUMENTS
1. All completed or partially completed reports prepared under this
Agreement, including the original drawings in both paper and electronic
formats, shall become the property of CITY if this Agreement is
terminated. Upon completion and payment of the contract, the final
design, drawings, specifications and documents in both paper and
electronic formats shall be owned by CITY.
2. Reuse, change or alteration by CITY or others acting by or on behalf of
CITY of such documents without the permission of ENGINEER shall be at
CITY’s sole risk.
X. ARTICLE
INSURANCE
ENGINEER shall carry and maintain at all times relevant hereto, at ENGINEER’s
expense, insurance of the type and of minimum coverage limits as follows:
1. Workers Compensation - Statutory Employer’s Liability - Limits as required
by the State of Texas.
2. Comprehensive General Liability, Bodily Injury and Property Damage
including contractual liability in a combined single limit - $500,000 per
occurrence.
3. Comprehensive Automotive Liability, Bodily Injury and Property Damage
in a combined single limit - $1,000,000 per accident.
Certificates of insurance for the above coverage in a form acceptable to CITY,
evidencing the coverage required above, shall be provided to CITY within ten (10)
business days after execution of this Agreement and prior to issuing Notice to Proceed.
Such certificates shall provide that the insurer will give CITY not less than ten (10) days
notice of any material changes in or cancellation of coverage. In the event any
subcontractor of ENGINEER, with or without CITY’s consent, provides or renders
services under this Agreement, ENGINEER shall ensure that the subcontractor’s
services are covered by the same insurance limits as set forth above.
ENGINEER shall not commence work under this Agreement until it has obtained
Professional Liability (Errors and Omissions) Insurance as required hereunder and such
insurance coverage has been approved by CITY. Such insurance shall be in the
minimum amount of $1,000,000 and shall include coverage of Contractually Assumed
Liability. The insurance coverage prescribed herein shall be maintained until one (1)
year after CITY’s acceptance of the construction project and shall not be canceled
without prior written notice to CITY. In this connection, upon the signing and return of
Page 8
this Agreement by ENGINEER, a Certificate of Insurance shall be furnished to CITY as
evidence that the insurance coverage required herein has been obtained by
ENGINEER, and such certificate shall contain the provision that such insurance shall
not be cancelled or modified without thirty (30) days prior written notice to CITY.
ENGINEER shall notify CITY within ten (10) days of any modification or alteration in
such Professional Liability (Errors and Omissions) Insurance.
XI. ARTICLE
AUTHORIZATION, PROGRESS AND COMPLETION
CITY and ENGINEER agree that the Project is planned to be completed as
expeditiously as possible. ENGINEER shall employ manpower and other resources,
and use professional skill and diligence to meet the schedule; however, ENGINEER
shall not be responsible for schedule delays resulting from conditions beyond its control.
By mutual agreement, CITY and ENGINEER may modify the Project schedule during
the course of the Project and if such modifications affect ENGINEER’s compensation, it
shall be modified accordingly, subject to CITY’s approval.
It is understood that this Agreement contemplates full and complete engineering
services for this Project, including any and all Services necessary to complete the work.
For additional Engineering Services, the authorization by CITY shall be in writing and
shall include the definition of the services to be provided, the schedule for commencing
and completing the services, and the basis for compensation as agreed upon by CITY
and ENGINEER.
XII. ARTICLE
NOTICE
Any notice required under this Agreement will be in writing and given either
personally, by registered or certified mail, return receipt requested, or by a nationally
recognized overnight courier service, addressed to the parties as follows:
If to CITY: Shana Yelverton
City Manager
City of Southlake
1400 Main Street, Suite 460
Southlake, Texas 76092
Phone: 817-748-8400
Fax: 817-748-8010
Page 9
If to ENGINEER: Ben Njaria
Senior CMT Estimator
Alpha Testing, Inc.
5058 Brush Creek Road
Fort Worth, Texas 76119
Phone: 817-496-5600
Fax: 817-496-5608
All notice shall be effective upon the date of receipt.
XIII.ARTICLE
SEVERABILITY
In the event that any provision of this Agreement shall be found to be void or
unenforceable, such finding shall not be construed to render any other provisions of this
Agreement either void or unenforceable. All provisions, which are void or
unenforceable, shall not substantially affect the rights or obligations granted to or
undertaken by either party.
XIV. ARTICLE
VENUE-LAW
Venue of any suit or cause of action under this Agreement shall lie exclusively in
Tarrant County, Texas. This Agreement shall be construed in accordance with the laws
of the State of Texas.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed
in two equal originals on the date and year first above mentioned.
CITY OF SOUTHLAKE:
By: _________________________________
Laura Hill, Mayor
ATTEST:
By: _________________________________
City Secretary
Page 10
ENGINEER: ALPHA TESTING, INC.
By: ____________________________________
Ken Combs, Vice President
THE STATE OF TEXAS §
COUNTY OF __________ §
Before me on this day personally appeared ______________ known to me [or
proved to me on the oath of _______________ or through ___________________
(description of identity card or other document)] to be the person whose name is
subscribed to the foregoing instrument and that he/she is the duly authorized
______________________ of _____________________________, and acknowledged
to me that he/she executed the same for the purposes and consideration therein
expressed.
Given under my hand and seal of office this _____ day of __________,
A.D.______.
______________________________________
(SEAL) Notary Public, State of Texas
____________________________________
Notary’s Name Printed
Fuel Farm Waterline Extension
Cost Estimate No:78434
Environmental Geotechnical Construction Materials
CMT COSTESTIMATE
1400 Main St., Suite 320
Attention: Brent Anderson, P.E.
baanderson@ci.southlake.tx.us
Services and Fees
Cost Estimate No:78434-2020-45
Respectfully submitted,
ALPHA TESTING, INC.
Ben Njaria
BN/jr Tim Begole, Jr.
Attachments:Acceptance Sheet
General Terms and Conditions
Southlake, Tx 76092
Senior CMT Estimator
CMT Department Manager
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
white copy of 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.
FUEL FARM WATERLINE EXTENSION
July 16, 2020
South Lake, Texas
Construction Materials Testing
CITY OF SOUTHLAKE
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.
2Cost Estimate No: 78434-2020-45
FIRM PROFILE
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
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.
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
HISTORY
Alpha Testing, Inc. (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.
BUSINESS LOCATIONS
2. Fort Worth Office
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
4. Houston Office
6513 W. Little York Road, Houston, TX 77040
(V) 713-360-0460 (F) 713-360-0481
Duraisamy S. (Roy) Saravanathiiban, Ph.D., P.E., Senior Geotechnical Engineer:
rsaravanathiiban@alphatesting.com
Quality Control
All testing equipment in Alpha’s laboratories is calibrated on an annual basis using traceable standards (NIST or
NSTL). 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.
3Cost Estimate No: 78434-2020-45
UTILITIES
MECHANICAL LIME STABILIZATION
Based on information provided, it is our understanding, approximately 33 cubic yards of concrete will be placed. It is
estimated that an engineering technician could be required on site for an estimated 14 hours to mold approximately
12 test cylinders.
HOT MIX ASPHALT CONCRETE TESTING
In this cost estimate, we are providing our cost estimate of the testing anticipated based on our understanding of the
project information provided; civil plans and specification dated: 2/28/2020; applicable city standards for the City of
Southlake;. We have generated a cost estimate for Fuel Farm Waterline Extension based on this information
Based on our understanding of the information provided for this project, field density testing is required on the sub-
grade and fill materials placed. It is estimated that an engineering technician could be required on site for about 5
hours to perform approximately 7 field density tests. In addition, the technician could obtain approximately 1 soil
sample for laboratory proctor analysis.
PROJECT INFORMATION
Based on our understanding of the information provided, field density testing is required on the backfill material
placed. We have estimated that approximately about 8,668 linear feet of water lines would be placed. We have
estimated that our engineering technician could be required to observe and test on site full-time for approximately
194 hours to perform approximately 383 field density tests. It is estimated that approximately 400 linear feet of utilities
lines will be placed per day. In addition the technician could obtain approximately 3 soil samples for laboratory
proctor analysis.
Based on the information provided, that approximately 3,690 square feet of sub-grade would be mechanically lime
stabilized. We have estimated that our engineering technician could be required on-site for about 3 hours to perform
approximately 13 density tests and field gradations. In addition, the technician could obtain approximately 1 soil
sample for laboratory proctor analysis.
SITE PREPARATION, FILLING, BACK FILLING
CONCRETE TESTING
It is our understanding that testing of the hot mix asphalt concrete materials and installation observation is required.
Approximately 2,610 square feet of area would be utilized for asphalt concrete pavement. We have estimated that
our engineering technician could be required on-site for about 5 hours.
4Cost Estimate No: 78434-2020-45
UTILITIES
MECHANICAL LIME STABILIZATION
Paving: 1 density test for every 500 tons each type.
Paving: 1 set of 4 test cylinders every 150 cubic yards.
Trench backfill for utilities should be properly placed and compacted in accordance with requirements of local City
standards
SCOPE OF SERVICES
Paving: 1 FDT each 300 linear feet and 6 inch lift
Trench Back-fill: 1 density test for every 300 linear feet each 6 inch lift.
Note: This cost estimate excludes testing of individual service lines. Should these items require testing, this
cost estimate could be revised upon request.
All areas supporting slab foundations, flatwork, pavement or areas to receive new fill should be properly proof-rolled,
compacted and tested.
SITE PREPARATION, FILLING, BACK FILLING
Note: As a geotechnical report was not available at the time this cost estimate was completed, the scope of
testing may change based on recommendations in the soils report, in which case this cost estimate could be
revised upon request.
HOT MIX ASPHALT CONCRETE TESTING
Atterberg-limit Test: 1 sample to be obtained for each site visit
Lime Treated Subgrade: 1 density test for every 5,000 square feet.
CONCRETE TESTING
Note: Pot Hole testing will not be an acceptable method of testing.
5Cost Estimate No: 78434-2020-45
I. Site Preparation, Filling, Back Filling (City R.O.W.)
Description Est. Qty Unit Rate Est. Total
Density Testing /Hour 5.00 $45.00 $225.00
Nuclear Density Gauge/Each 1.00 $65.00 $65.00
Proctor #/Each 1.00 $185.00 $185.00
Atterberg Limit Test/Each 1.00 $70.00 $70.00
-200 Sieve/Each 1.00 $70.00 $70.00
Material Pickup/Hour 4.00 $45.00 $180.00
Vehicle Trip Charge/Trip 2.00 $35.00 $70.00
Engineering Report Review/Hour 1.00 $85.00 $85.00
Subtotal $950.00
II. Utilities City (R.O.W.)
Description Est. Qty Unit Rate Est. Total
Density Testing /Hour 194.00 $45.00 $8,730.00
Nuclear Density Gauge/Trip 22.00 $65.00 $1,430.00
Proctor #/Each 3.00 $185.00 $555.00
Atterberg Limit Test/Each 3.00 $70.00 $210.00
-200 Sieve/Each 3.00 $70.00 $210.00
Material Pickup/Hour 4.00 $45.00 $180.00
Vehicle Trip Charge/Trip 23.00 $35.00 $805.00
Engineering Report Review/Hour 4.00 $85.00 $340.00
Subtotal $12,460.00
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.
ESTIMATED TESTING SCHEDULE
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, INC. 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.
6Cost Estimate No: 78434-2020-45
III. Mechanical Lime Stabilization (City R.O.W.)
Description Est. Qty Unit Rate Est. Total
Density Testing /Hour 3.00 $45.00 $135.00
Nuclear Density Gauge/Trip 1.00 $65.00 $65.00
Proctor #/Each 1.00 $185.00 $185.00
Atterberg Limit Test/Each 1.00 $70.00 $70.00
-200 Sieve/Each 1.00 $70.00 $70.00
Lime Depth Checks/Hour 1.00 $45.00 $45.00
Field Gradations/Hour 1.00 $45.00 $45.00
Lime Series/Each 1.00 $350.00 $350.00
Lime Recommendation Letter/Each 1.00 $300.00 $300.00
Material Pickup/Hour 4.00 $45.00 $180.00
Vehicle Trip Charge/Trip 2.00 $35.00 $70.00
Engineering Report Review/Hour 1.00 $85.00 $85.00
Subtotal $1,600.00
IV. Concrete Testing (City R.O.W.)
Description Est. Qty Unit Rate Est. Total
Prepour Monitoring/Hour 2.00 $45.00 $90.00
Concrete-Testing/Hour 14.00 $45.00 $630.00
Concrete Comp. Test/Each 12.00 $12.50 $150.00
Cylinder Pickup/Hour 2.00 $45.00 $90.00
Vehicle Trip Charge/Trip 3.00 $35.00 $105.00
Engineering Report Review/Hour 1.00 $85.00 $85.00
Subtotal $1,150.00
V. Hot Mix Asphalt Concrete Testing (City R.O.W.)
Description Est. Qty Unit Rate Est. Total
HMAC Monitoring/Hour 5.00 $45.00 $225.00
Nuclear Density Gauge/Each 1.00 $65.00 $65.00
Marsh Stability Flow Den/Each 3.00 $125.00 $375.00
Extraction & Gradation/Each 1.00 $225.00 $225.00
Specific Gravity of Aggregates/Each 1.00 $130.00 $130.00
Vehicle Trip Charge/Trip 1.00 $35.00 $35.00
Engineering Report Review/Hour 1.00 $85.00 $85.00
Subtotal $1,140.00
$17,300.00Grand Total:
*Should ALPHA TESTING, INC. 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.
7Cost Estimate No: 78434-2020-45
VI. Optional-Concrete Testing
Description Est. Qty Unit Rate Est. Total
Batch Plant Inspection/Hour 4.00 $45.00 $180.00
Subtotal $180.00
ADDITIVE OPTION
8Cost Estimate No: 78434-2020-45
Date:Alpha Cost Estimate No:78434-2020-45
Project Name:CMT Estimate $17,300.00
Project City:
July 16, 2020
FUEL FARM WATERLINE
EXTENSION
Name:_______________________Phone:__________________Email:____________________________________
* Highlighted Areas Must Be Filled Out *
Cost Estimate ACCEPTED BY: ___________________________________________________________________
Signature Title Date
CLIENT:____________________________________________________ ATTN:_________________________________________________
REPORTS WILL BE PROVIDED TO THE CLIENT VIA THE INTERNET
OWNER OF PROPERTY:_____________________________________________________________________________________________________
CITY/STATE/ZIP:____________________________________________ PHONE/FAX:________________________________________
REPORT DISTRIBUTION
Please indicate in the space provided authorized field personnel, along with pager 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.
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.
ADDRESS:_________________________________________ CITY/STATE/ZIP:_____________________________/_____________/____________
For projects with new clients under $1,000.00, 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.
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.
Accounts Payable Contact:
Firm Contact Name Email
South Lake, Texas
CMT ACCEPTANCE FORM
ADDRESS:__________________________________________________ EMAIL:________________________________________________
PROJECT LEGAL DESCRIPTION:____________________________________________________________________________________________
PROJECT COUNTY:____________________________
9Cost Estimate No: 78434-2020-45
Services and fees not listed above will be quoted on request.
ALPHA TESTING, INC. 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.
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.
PLEASE NOTE: In keeping OSHA Safety regulation, ALPHA TESTING, INC. 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.
REMARKS
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.
For projects with new clients under $1,000.00 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.
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.
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.
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.
Services performed outside a 40 mile radius of this area will be charged mileage of $.55 a mile.
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.
Cancellations will be invoiced for portal to portal times as well as time spent on site awaiting determination of
cancellation.
All field services are charged portal-to-portal, minimum charge of 3 hours per trip applies to all field work.
Next day results for Standard Proctor Tests will be charged at 1.5 times the standard unit prices.
All reports are available on line.
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.
The above unit prices are applicable for one year from the date of this letter and are subject to change without notice
thereafter.
10Cost Estimate No: 78434-2020-45
“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, INC. (“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.
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.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 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.
11Cost Estimate No: 78434-2020-45
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.
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 (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 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 (ii)
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.
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.
12Cost Estimate No: 78434-2020-45
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
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.
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 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.
13Cost Estimate No: 78434-2020-45
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
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.
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.
14Cost Estimate No: 78434-2020-45
The provisions of this Section 18 shall survive the termination of this Agreement.
(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.
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.
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.
15Cost Estimate No: 78434-2020-45