Loading...
North Lake Cypress-CS130729ALPHA #NtTESTING WHERE IT ALL BEGINS Billingsley Company One Arts Plaza, 1722 Routh St., Suite 1313 Dallas, TX 75201 Attention: Mr. Toni Holland Geotechnical Construction Materials Environmental TBPE Firm No. 813 2209 illisconsin Street Suite 100 Dallas, Texas 75229 July 29, 2013 Tel: 972.620.8911 Fax: 972.620.1302 ivwrv.alphatesting. cont Re: Proposal Geotechnical Exploration Hackberry Road Improvements City of Irving Tarrant County, TX ALPHA Proposal No. 37365 ALPHA TESTING, INC. (hereinafter "ALPHA") is hereby pleased to submit to Billingsley Company (hereinafter "Client") the following proposal for a Geotechnical Exploration on the project referenced above. Project Information The purpose of the geotechnical study will be to provide information for use in design of PCC pavement for the proposed project. Scope of Work This study will include the following evaluations: Subsurface soil, rock and groundwater conditions on the site to depths that would be significantly affected by foundations. Engineering characterization of the subsurface materials encountered. Data required for design of pavements for the project. Recommendations regarding earthwork, including grading and excavation, backfilling and compaction, the treatment of in-place soils for the support of pavement and possible construction problems reasonably to be expected. We propose to explore the subsurface soil and/or rock conditions at the site by drilling test borings. It is estimated the necessary information will be provided by drilling 5 test borings to a depth of 15 ft. The borings will be drilled though the existing PCC pavement. At the completion of drilling operations, bore holes will be backfilled and plugged with soil cuttings, and any pavement that is penetrated will be patched with similar material. Settlement of bore holes may occur over time. ALPHA shall not be responsible for any settlement of boreholes that may occur after initial backfilling. The number and depth of the test borings required to obtain the necessary field data may vary depending on the actual soil and/or rock conditions encountered. If unusual subsurface conditions are encountered and alternate field work is indicated, we will consult with the client prior to initiating any additional services. Please note, regardless of the number of borings performed subsurface conditions between borings may vary. The study will also include laboratory tests to evaluate the classification, gradation and certain physical characteristics of the subsurface soils. The specific types and quantities of tests will be determined based on soil/rock conditions encountered in the borings. Our laboratories are fully equipped with modern equipment for soil and rock testing and tests are performed by trained qualified technicians in compliance with the applicable specifications. Field exploration programs are conducted with drilling equipment operated by experienced and reliable drillers. All field and laboratory staff are supervised by professional engineers. Results of the field exploration and laboratory tests will be utilized in the engineering analysis and the formulation of our recommendations. Results of our study, including the substantiating data and our recommendations, will be presented in a written report prepared by a Licensed Professional Engineer. #X Costs and Schedule Our fee for performance of the geotechnical study on the site described will be as noted below. We guarantee not to exceed this figure without your approval. Boring operations would commence within about five (5) working days from your notification to proceed. The complete written report would be electronically sent to you within about ten (10) working days following completion of the boring operations. Geotechnical Lump Sum Fee 1 $3,800.00 Working Days to Complete Study 1 15 days The above cost estimate is based on Client providing information regarding the location of any utilities on the subject site and providing suitable access and entry to test boring locations. Surveying of boring locations and elevations is not included in the cost estimate, but can be provided if needed upon request. ALPHA is not responsible for damage to any below grade utilities of which we are not made aware. Client represents that it has full authority from the current landowner to engage ALPHA to perform this study. The pricing provided above assumes test boring locations can be accessed using standard, truck -mounted drilling equipment. If difficult site conditions are encountered, alternate pricing may be provided using an All -Terrain Drilling Unit or other portable equipment. In any event, our field equipment may rut the site during drilling operations. A concerted effort will be made to minimize such problems, however, ALPHA is not responsible for re -grading or repairing rutted areas if they develop. The scope of work for this study does not include stability analysis for any slopes either to be constructed or which may exist naturally on the site. If the final grading plans indicate significant slopes (over about 3 ft high) will exist, it is recommended the client have slope stability analysis conducted. Further, the scope of work proposed herein does not include design parameters for retaining walls nor does it include global stability of the same. If a slope stability analysis and/or a retaining wall analysis is desired, upon request, ALPHA will provide a separate Proposal for such analysis. If this Proposal is acceptable, please have an authorized officer sign in the space provided below in the Proposal Acceptance Form and return a signed copy via either email or fax, or the signed original to our office. We will consider receipt of a signed original or copy of this Proposal as our Notice to Proceed. Work cannot be initiated prior to receiving a signed copy of this Proposal. If a copy is e-mailed or faxed, client consents to such copy of a signature, or electronic signature, as serving as an original signature. Unless prior arrangements are agreed to in writing, payment for services described in this Proposal is due within 30 days of invoice date. By execution of this Proposal, the undersigned Client acknowledges and agrees that the attached "Terms and Conditions" have been provided or made available to Client and Client agrees that such Terns and Conditions shall be applied to the present Proposal and shall be fully binding upon Client. The "Terms and Conditions" are attached to this proposal as "Exhibit A" and are fully incorporated into this Proposal by reference as if set forth herein. Thank you for this opportunity to offer our services. We look forward to working with you on this project. Sincerely, ALPHA TESTING, INC. Brian A. Powell, P.E. President BAP/pc Attachments: Proposal Acceptance Form "Exhibit A" Terms and Conditions Page? or7 ALPHA Proposal No. 37365 #X GEOTECHNICAL PROPOSAL ACCEPTANCE FORM Date: July 29, 2013 ALPHA Proposal No.: 37365 Project Name: Hackberry Road Improvements City of Irving Project Location: Tarrant County, TX CLIENT: ADDRESS: CITY/STATE/ZIP: ATTENTION: TELEPHONE: EMAIL: FAX: *****REQUIRED INFORMATION Land Owner's Name: Address: City, St. Zip: Project Legal Description• Project County: The undersigned hereby accepts all the Terms and Conditions set forth in this Proposal and warrants that he/she has full authority to bind the Client. PROPOSAL ACCEPTED BY: Signature Title Date PRINTED NAME: REPORT DISTRIBUTION FIRM ADDRESS CITY STATE ZIP OF COPIES Page 3 of7 ALPHA Proposal No. 37365 "EXHIBIT A" Terms and Conditions Section I: The Agreement The Agreement between the parties, which shall describe and govern CLIENT's engagement of ALPHA TESTING, INC. ("ALPHA") to provide services ("Services") in connection with the project ("Project") identified in the proposal ("Proposal"), consists of the Proposal, these General Terns and Conditions ("Terns"), 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 Terns 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 (the "Limited Warranty"). 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. 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. EXCEPT FOR THE LIMITED WARRANTY, ALPHA MAKES NO OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SERVICES, AND EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES: INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF GOOD AND WORKMANLIKE PERFORMANCE AND OF FITNESS FOR A PARTICULAR PURPOSE. Section 3: Site Access and Conditions CLIENT shall grant to, or obtain for, ALPHA unimpeded access to the Project site for all equipment and personnel necessary for the performance of the Services, and access necessary for ALPHA's personnel to photograph the Project site. As required to effectuate such access, CLIENT shall notify all owners, lessees, contractors, subcontractors, and other possessors ofthe 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 crony such damage caused by ALPHA unless so specified in the Proposal. CLIENT is responsible for the accuracy of locations for all subterranean structures and utilities, and CLIENT waives any claim against ALPHA, and shall defend (with counsel acceptable to ALPHA), indemnify, and hold 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 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, and written reports. 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 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. ALPHA shall not be liable for any inaccurate information furnished by CLIENT, and CLIENT shall defend (with counsel acceptable to ALPHA) indemnify and hold ALPHA harmless against any claims, demands or liability, including costs of defense and attorneys' fees, arising out of, related to, or contributed to by such inaccurate information. CLIENT waives any claim it might have against ALPHA for damages arising out its failure to timely provide accurate information or its failure to timely provide new, changed, or additional information, as set forth in the preceding paragraph, and further agrees to indemnify and hold harmless ALPHA from any claim or liability resulting from CLIENT's failure to timely provide such 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 plans and specifications, CLIENT agrees to defend and hold ALPHA harmless from any liability arising out of such changes, and CLIENT assumes bill responsibility for any liabilities arising out of such changes unless CLIENT has given ALPHA prior written notice of such changes and has received from ALPHA written consent for such changes. Page 4 of 7 ALPHA Proposal No. 37365 /X 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 5 shall survive until the earliest of the following occur: (i) Confidential Material has become available to the general public through no fault of ALPHA; or (ii) Confidential Material is received by ALPHA from others who are in lawful possession of such and who by such disclosure are not breaching any obligation to CLIENT. Notwithstanding the foregoing, any confidential information supplied by ALPHA to CLIENT, as well as any ALPHA Intellectual Property (collectively, "ALPHA Confidential Information"), embody proprietary technology and valuable trade secrets of ALPHA, which are vital to the business of ALPHA, and whose value depends upon them not being generally known. CLIENT shall hold the ALPHA Confidential Information in strict confidence and take all necessary steps to ensure that access to any portion of the ALPHA Confidential Information is not provided to any person or entity other than CLIENT without the express written permission of ALPHA. CLIENT expressly agrees that if the ALPHA Confidential Information is improperly disclosed ALPHA will be irreparably damaged. In such event, ALPHA shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies, including injunctive relief, with respect any breach(es) of this Agreement, in addition to any other remedies available at law or in equity. In addition, CLIENT's officers, directors, employees and affiliates will protect the confidentiality of the ALPHA Confidential Information with the same degree of care as CLIENT affords its own confidential information (but in no event less than the degree of care that would be taken by a reasonable person), and shall not disclose such information to any third party; provided, however, that the foregoing shall not apply to information that (a) is now or hereafter becomes publicly known due to no fault of CLIENT or (b) is disclosed to CLIENT by a third party without any breach of an obligation of confidentiality. Section 7: Sample Disposal Samples of soil, rock, water, waste or other materials contaminated by hazardous substances, including asbestos, obtained from the Project site are and remain the property of the CLIENT. ALPHA shall retain such samples for no longer than thirty (30) 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 thirty (30) day period referenced above, CLIENT hereby instructs ALPHA to make arrangements, as CLIENT's agent and at CLIENT's cost, for proper transportation and disposal of contaminated samples with appropriate licensed parties. Due to the risks to which ALPHA may be exposed during transportation and disposal of contaminated samples, CLIENT waives any claim against ALPHA, and shall defend, indemnify, and hold ALPHA harmless from any claim or liability for injury or loss, including costs of defense and attorneys' fees, arising from ALPHA's service as CLIENT's agent in arranging for proper transportation and disposal of contaminated samples. There are extra costs involved in this disposal by ALPHA of samples contaminated with highly toxic and/or hazardous substances (i.e. PCBs, Dioxins, Cyanide, Pesticides, etc.). In this 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 Monitoring ALPHA shall have no authority to reject or terminate the work of any agent or contractor of CLIENT. No action, statements, or communications of ALPHA, or ALPHA's site representative, can be construed as modifying any agreement between CLIENT and others. ALPHA's presence on the Project site in no way guarantees the completion or quality of the performance of the work of 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. CLIENT acknowledges that CLIENT or its general contractor is solely responsible for job site safety, and warrants and agrees that such responsibility shall be made evident in the Project owner's agreement with the general contractor. CLIENT shall make ALPHA an additional insured under any general contractor's general liability insurance policy. In the event ALPHA expressly assumes any health or safety responsibilities for hazardous materials or other items as further set forth in this Agreement, the acceptance of such responsibility shall not be deemed acceptance of responsibility for any other health or safety requirements, including but not limited to those responsibilities or requirements relating to excavation, trenching, drilling or back filling. Section 9: 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 all reasonable times. 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 without cause by either party upon ten (10) days' written notice by the terminating party. This Agreement may also be terminated for cause by the non -defaulting party if, after seven (7) days atter 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 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. Page 5 o1`7 ALPHA Proposal No. 37365 tX Section 1l: 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 ALL OTHER PARTIES FOR CLAIMS ARISING OUT OF ALPHA'S PERFORMANCE AND THE SERVICES. THE TOTAL AGGREGATE LIABILITY OF ALPHA SHALL NOT EXCEED THE TOTAL FEE FOR THE SERVICES RENDERED ON THE PROJECT OR $20000 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 ofthe construction contractors or subcontractors, or for their errors or omissions. Section 12: Discovery of Unanticipated Hazardous Materials CLIENT warrants that it has made reasonable efforts to inform ALPHA of known or suspected hazardous materials on or near the Project site. The parties acknowledge that hazardous materials may exist at a site even if there is no reason to bel ieve 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 treasures to safeguard the public health and safety and shall compensate ALPHA for measures that, in ALPHA's professional opinion, are necessary and justified to preserve and protect the health and safety of site personnel and the public. CLIENT also shall compensate ALPHA for any equipment decontamination or other costs incident to the discovery ofunanticipated hazardous materials. ALPHA shall notify CLIENT as soon as practicable should unexpected hazardous materials be encountered at the site that pose a threat to human health, safety and the environment. CLIENT agrees that, in the event of the discovery of hazardous materials at the site, it shall report such discovery to the proper authorities as required by Federal, State, and local regulations. CLIENT agrees to make the required report at the recommendation of ALPHA, or, if unable to do so, authorizes ALPHA to make such report. CLIENT shall also inform the Project site owner in the event that hazardous materials are encountered at the site. Notwithstanding any other provision of this Agreement, CLIENT waives any claim against ALPHA, and to the maximum extent permitted by law, agrees to defend, indemnify, and save ALPHA harmless from any claim, liability and/or defense costs for injury or loss arising from the presence of hazardous materials on the project site, including any costs created by delay of the project and any costs associated with possible reduction of the property's value. CLIENT is responsible for ultimate disposal of any samples secured by ALPHA that are found to be contaminated, at CLIENT's cost. Section 13: Ground Water Contamination CLIENT acknowledges that it is impossible for ALPHA to know the exact composition of a site's subsurface, even after conducting a comprehensive exploratory program. As a result, there is a risk that drilling and sampling may result in contamination of certain subsurface areas. Although ALPHA will take reasonable precautions to avoid such an occurrence, CLIENT waives any claim against ALPHA for, and shall defend, indemnify and hold ALPHA harmless from, any claim or liability for injury or loss which may arise as a result of subsurface contamination caused by drilling, sampling, testing or monitoring well installation. CLIENT shall also adequately compensate ALPHA for any time spent and expenses incurred in defense ofany such claim. Section 14: Insurance No insurance carried by ALPHA shall be deemed to limit in any way the responsibility of any contractor or subcontractor for damages resulting from their services in connection with the Project. CLIENT shall include, or cause to be included, in the Project's construction contract such requirements for insurance coverage and performance bonds to be secured and maintained by the Project contractor as CLIENT deems adequate to insure and indemnify CLIENT and ALPHA against claims for damages, and to insure compliance of work performance and materials with Project requirements. Section 15: Indemnity ALPHA and the Client shall each indemnify the other against 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. 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 trust 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 len (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 (I%) per month, or the maximum rate allowed by law, whichever is lower. CLIENT agrees to pay all costs and expenses, including reasonable attorney's fees and costs, incurred by ALPHA should collection proceedings be necessary to collect on Client's overdue account. Unless the Proposal specifies the Project Cost as not -to -exceed or lump sum, CLIENT agrees that cost estimates and schedules are based upon ALPHA's best judgment of Site conditions and other requirements at the time of Proposal and should be used by CLIENT for planning purposes only. ALPHA will endeavor to perform the Services within the estimates but will notify CLIENT irestimates are likely to be exceeded. in the event ofchanged site conditions or other conditions requiring additional time, CLIENT agrees to pay the reasonable and necessary increases resulting from such additional time. Page 6 of7 ALPHA Proposal No. 37365 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 (I) 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, ifALPHA's employees, contractors, and consultants are solicited in contravention of this Non - Solicitation provision, that ALPHA will be irreparably damaged. In such event, ALPHA shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect any breach(es) of this Agreement, including injunctive relief, in addition to any other remedies available at law or in equity. Section 18: Resolution ofDisnutes 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. Any disputes or controversies not resolved or settled by the parties hereto shall be submitted to arbitration. Demand for arbitration shall be made by either party within ten (10) calendar days following termination of mediation. The date of termination of mediation shall be the date of written notice of closing mediation proceedings issued by the mediator to each of the parties. Demand for arbitration shall be made by filing notice of demand, in writing, with the other party and with the American Arbitration Association, under its Construction Industry Rules. The award rendered, if any, by the arbitrator(s) shall be final and binding on both parties and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction. Notwithstanding any other provisions of this Section, in no event shall a demand for mediation or arbitration be made more than two (2) years from the date of the party making demand knew or should have known of the dispute or five (5) years from the date of substantial completion of ALPHA's Services, whichever date shall occur earlier. All mediation or arbitration shall take place in Dallas County, Texas, unless CLIENT and ALPHA agree otherwise. The fees of the mediator and/or arbitrator(s), the mediation and/or arbitration filing and proceeding fees, and other costs associated with the mediator or arbitrator(s) shall be apportioned equally between the parties, subject to, in the case of arbitration, to adjustment by the arbitrator(s) as part of the award. The prevailing party in any arbitration proceeding shall be entitled to recovery of its reasonable attorneys' fees from the non -prevailing party, as determined by the arbitrator(s). 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. Page 7 of 7 ALPHA Proposal No. 37365 Project Name: Hackberry Road Improvements City of Irving Tarrant County, TX Billingsley Development Alpha Testing, Inc. 2209 Wisconsin St., Suite 100 Dallas, TX 75229 (972)620-8911 invoice No: 211307 invoice Date: 8/23/2013 Project Mgr: Client: Billingsley Company AUGi' OB 1 ATTN: Tom Holland One Arts Plaza, 1722 Routh Sl., Suite 1313 Dallas, TX 75201 Rene>ive J (214)270-0986 Customer P.O. No: Project No: G131677 Items through: 8/23/2013 Terms: NET 30 Quantity Description of work Report Date Report # Unit Price Per Extension 1.00 GEOTECHNICAL EXPLORATION 8/23/2013 1 $3,800.00 LS $3,800.00 Estimated Budget: $3,800.00 Previously Invoiced: $0.00 Uninvoiced/Open: $0.00 Total This Invoice: $3,800.00 Remaining Budget: $0.00 Pay this Invoice Total: $3,800.00 PLEASE REMIT ALL PAYMENTS.TOTHE`CORPORATE OFFICE R Alpha,Testl_ng, Ine., K Attn:Accounts`Recaivablb: B r 2209•WisconsimSt. #100 Dallas 'Texas 75229 xM —�►Pz+� Y�OP9� (�0�1.�0 PROPERTY TOTALAMOMT TO BE PAID 304i L7 CATEGORYS� GL CODE AMOUNT J15-00 For any questions concerning this invoice, please contact our project manager for clarification. Oncor Electric Delivery Company LLC, a Delaware limited liability company New Construction Management Karen Eastman 200 North Ector Euless, Texas 76039 Statement of Charges Date: 6/20/14 WR #. 3237868 Transaction ID: 32300 The Billingsley Company Services provided at: Tom Holland Cypress Waters Development 1722 Routh St., Suite 1313 Hackberry Rd. and Chartwell Dr. Dallas, Texas 75201 Irving/Coppell DESCRIPTION AMOUNT This invoice covers the excess cost of providing streetlights at the Cypress Waters development. 116.73 Total Amount Due Upon Receipt $116.73 * Price quoted is valid for sixty (60) days from the date of this document. * Remit payment per instructions below. * Please contact your Project Manager if you have any questions. Project will be scheduled upon: 1) CIAC Coordinator's receipt of payment 2) Project Manager's receipt of Executed Agreement(s) EFT / Electronic Funds Transfer JP Morgan Chase Bank ABA No. (Wire) 021000021 ABA No. (ACH) 111000614 For Credit To: Oncor Electric Delivery Acct #: 08806169791 Once EFT has been initiated please forward confirmation number and transfer date to: Please make all check(s) Davable to Oncor Electric Delivery Remit to: Vickie Coe Oncor Electric Delivery 1545 High Point Dr Mesquite TX 75149 .. .... .. ....... .. .. ...... ... ....... ............................ ....... .... .............. ................... Please Include the WR # and Transaction ID (as listed above) on all correspondence including your Check or EFT. Failure to do so will cause unnecessary delays with your project. 5.............................................................................................................