7574-006 - Contract Executed
Docusign Transmittal Coversheet
File Name
Purchasing Contact
Contract Expiration
DocuSign Envelope ID: 8D9E2A7B-0A85-4715-9610-52F22FF8B086
NA
Crystal Westbrook
7574-006
WINDSOR WASTEWATER CAPACITY
FILE
City of Denton, Texas
Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 1 of 16
CITY OF DENTON, TEXAS
STANDARD AGREEMENT FOR ENGINEERING RELATED PROFESSIONAL
SERVICES
This AGREEMENT is between the City of Denton, a Texas home-rule municipality
("CITY" or “CLIENT”), and Alpha Testing, Inc., with its corporate office at 2209 Wisconsin
St Suite 100, Dallas, Texas 75229 and authorized to do business in Texas, ("ENGINEER"
or “ALPHA”), for a PROJECT generally described as Windsor Wastewater Capacity (the
"PROJECT").
SECTION 1
Scope of Services
A. The CITY hereby agrees to retain the ENGINEER, and the ENGINEER hereby agrees
to perform, professional engineering services set forth in the Scope of Services
attached hereto as Attachment A. These services shall be performed in connection
with the PROJECT.
B. Additional services, if any, will be requested in writing by the CITY. CITY shall not
pay for any work performed by ENGINEER or its consultants, subcontractors and/or
suppliers that has not been ordered in advance and in writing. It is specifically
agreed that ENGINEER shall not be compensated for any additional work resulting
from oral orders of any person.
SECTION 2
Compensation and Term of Agreement
A. The ENGINEER shall be compensated for all services provided pursuant to this
AGREEMENT in an amount not to exceed $15,100 in the manner and in accordance
with the fee schedule as set forth in Attachment A. Payment shall be considered full
compensation for all labor, materials, supplies, and equipment necessary to
complete the services described in Attachment A.
B. Unless otherwise terminated pursuant to Section 6. D. herein, this AGREEMENT shall
be for a term beginning upon the effective date, as described below, and shall continue
for a period which may reasonably be required for the completion of the PROJECT,
until the expiration of the funds, or completion of the PROJECT and acceptance by the
CITY, whichever occurs first. ENGINEER shall proceed diligently with the PROJECT to
completion as described in the PROJECT schedule as set forth in Attachment A.
SECTION 3
Terms of Payment
Payments to the ENGINEER will be made as follows:
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City of Denton, Texas
Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 2 of 16
A. Invoice and Payment
(1) The Engineer shall provide the City sufficient documentation, including but not
limited to meeting the requirements set forth in the PROJECT schedule as set
forth in Attachment A to reasonably substantiate the invoices.
(2) The ENGINEER will issue monthly invoices for all work performed under this
AGREEMENT. Invoices for the uncontested performance of the particular
services are due and payable within 30 days of receipt by City.
(3) Upon completion of services enumerated in Section 1, the final payment of any
balance for the uncontested performance of the services will be due within 30
days of receipt of the final invoice.
(4) In the event of a disputed or contested billing, only that portion so contested will
be withheld from payment, and the undisputed portion will be paid. The CITY
will exercise reasonableness in contesting any bill or portion thereof. No
interest will accrue on any contested portion of the billing until mutually resolved.
(5) If the CITY fails to make payment in full to ENGINEER for billings contested in
good faith within 60 days of the amount due, the ENGINEER may, after giving 7
days' written notice to CITY, suspend services under this AGREEMENT until
paid in full. In the event of suspension of services, the ENGINEER shall have
no liability to CITY for delays or damages caused the CITY because of such
suspension of services.
SECTION 4
Obligations of the Engineer
A. General
The ENGINEER will serve as the CITY's professional engineering representative under
this AGREEMENT, providing professional engineering consultation and advice and
furnishing customary services incidental thereto.
B. Standard of Care
The ENGINEER shall perform its services:
(1) with the professional skill and care ordinarily provided by competent engineers
practicing in the same or similar locality and under the same or similar
circumstances and professional license; and
(2) as expeditiously as is prudent considering the ordinary professional skill and
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City of Denton, Texas
Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 3 of 16
care of a competent engineer.
C. Subsurface Investigations
(1) The ENGINEER shall advise the CITY with regard to the necessity for
subcontract work such as special surveys, tests, test borings, or other
subsurface investigations in connection with design and engineering work to be
performed hereunder. The ENGINEER shall also advise the CITY concerning
the results of same. Such surveys, tests, and investigations shall be furnished
by the CITY, unless otherwise specified in Attachment A.
(2) In soils, foundation, groundwater, and other subsurface investigations, the
actual characteristics may vary significantly between successive test points and
sample intervals and at locations other than where observations, exploration,
and investigations have been made. Because of the inherent uncertainties in
subsurface evaluations, changed or unanticipated underground conditions may
occur that could affect the total PROJECT cost and/or execution. These
conditions and cost/execution effects are not the responsibility of the
ENGINEER.
D. Preparation of Engineering Drawings
The ENGINEER will provide to the CITY the original drawings of all plans in ink on
reproducible mylar sheets and electronic files in .pdf format, or as otherwise approved by
CITY, which shall become the property of the CITY. CITY may use such drawings in any
manner it desires; provided, however, that the ENGINEER shall not be liable for the use of
such drawings for any project other than the PROJECT described herein.
E. Engineer's Personnel at Construction Site
(1) The presence or duties of the ENGINEER's personnel at a construction site,
whether as on-site representatives or otherwise, do not make the ENGINEER or
its personnel in any way responsible for those duties that belong to the CITY
and/or the CITY's construction contractors or other entities, and do not relieve
the construction contractors or any other entity of their obligations, duties, and
responsibilities, including, but not limited to, all construction methods, means,
techniques, sequences, and procedures necessary for coordinating and
completing all portions of the construction work in accordance with the
AGREEMENT Documents and any health or safety precautions required by
such construction work. The ENGINEER and its personnel have no authority to
exercise any control over any construction contractor or other entity or their
employees in connection with their work or any health or safety precautions.
(2) Except to the extent of specific site visits expressly detailed and set forth in
Attachment A, the ENGINEER or its personnel shall have no obligation or
responsibility to visit the construction site to become familiar with the progress
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City of Denton, Texas
Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 4 of 16
or quality of the completed work on the PROJECT or to determine, in general, if
the work on the PROJECT is being performed in a manner indicating that the
PROJECT, when completed, will be in accordance with the AGREEMENT
Documents, nor shall anything in the AGREEMENT Documents or this
AGREEMENT between CITY and ENGINEER be construed as requiring
ENGINEER to make exhaustive or continuous on-site inspections to discover
latent defects in the work or otherwise check the quality or quantity of the work
on the PROJECT. If the ENGINEER makes on-site observation(s) of a
deviation from the AGREEMENT Documents, the ENGINEER shall inform the
CITY.
(3) When professional certification of performance or characteristics of materials,
systems or equipment is reasonably required to perform the services set forth in
the Scope of Services, the ENGINEER shall be entitled to rely upon such
certification to establish materials, systems or equipment and performance
criteria to be required in the AGREEMENT Documents.
F. Opinions of Probable Cost, Financial Considerations, and Schedules
(1) The ENGINEER shall provide opinions of probable costs based on the current
available information at the time of preparation, in accordance with
Attachment A.
(2) In providing opinions of cost, financial analyses, economic feasibility projections,
and schedules for the PROJECT, the ENGINEER has no control over cost or
price of labor and materials; unknown or latent conditions of existing equipment
or structures that may affect operation or maintenance costs; competitive
bidding procedures and market conditions; time or quality of performance by
third parties; quality, type, management, or direction of operating personnel; and
other economic and operational factors that may materially affect the ultimate
PROJECT cost or schedule. Therefore, the ENGINEER makes no warranty
that the CITY's actual PROJECT costs, financial aspects, economic feasibility,
or schedules will not vary from the ENGINEER's opinions, analyses, projections,
or estimates.
G. Construction Progress Payments
Recommendations by the ENGINEER to the CITY for periodic construction progress
payments to the construction contractor will be based on the ENGINEER's knowledge,
information, and belief from selective sampling and observation that the work has
progressed to the point indicated. Such recommendations do not represent that
continuous or detailed examinations have been made by the ENGINEER to ascertain that
the construction contractor has completed the work in exact accordance with the
AGREEMENT Documents; that the final work will be acceptable in all respects; that the
ENGINEER has made an examination to ascertain how or for what purpose the
construction contractor has used the moneys paid; that title to any of the work, materials,
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City of Denton, Texas
Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 5 of 16
or equipment has passed to the CITY free and clear of liens, claims, security interests, or
encumbrances; or that there are not other matters at issue between the CITY and the
construction contractor that affect the amount that should be paid.
H. Record Drawings
Record drawings, if required, will be prepared, in part, on the basis of information compiled
and furnished by others, and may not always represent the exact location, type of various
components, or exact manner in which the PROJECT was finally constructed. The
ENGINEER is not responsible for any errors or omissions in the information from others
that is incorporated into the record drawings.
I. Right to Audit
(1) ENGINEER agrees that the CITY shall, until the expiration of five (5) years after
final payment under this AGREEMENT, have access to and the right to
examine and photocopy any directly pertinent books, documents, papers and
records of the ENGINEER involving transactions relating to this AGREEMENT.
ENGINEER agrees that the CITY shall have access during normal working
hours to all necessary ENGINEER facilities and shall be provided adequate and
appropriate work space in order to conduct audits in compliance with the
provisions of this section. The CITY shall give ENGINEER reasonable advance
notice of intended audits.
(2) ENGINEER further agrees to include in all its subconsultant agreements
hereunder a provision to the effect that the subconsultant agrees that the CITY
shall, until the expiration of five (5) years after final payment under the
subcontract, have access to and the right to examine and photocopy any
directly pertinent books, documents, papers and records of such subconsultant,
involving transactions to the subcontract, and further, that the CITY shall have
access during normal working hours to all subconsultant facilities, and shall be
provided adequate and appropriate work space, in order to conduct audits in
compliance with the provisions of this section together with subsection (3)
hereof. CITY shall give subconsultant reasonable advance notice of intended
audits.
(3) ENGINEER and subconsultant agree to photocopy such documents as may be
requested by the CITY. The CITY agrees to reimburse ENGINEER for the cost
of copies at the rate published in the Texas Administrative Code in effect as of
the time copying is performed.
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City of Denton, Texas
Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 6 of 16
J. INSURANCE
(1) ENGINEER’S INSURANCE
a. Commercial General Liability – the ENGINEER shall maintain
commercial general liability (CGL) and, if necessary, commercial
umbrella insurance with a limit of not less than $1,000,000.00 per each
occurrence with a $2,000,000.00 aggregate. If such Commercial General
Liability insurance contains a general aggregate limit, it shall apply
separately to this PROJECT or location.
i. The CITY shall be included as an additional insured with all rights
of defense under the CGL, using ISO additional insured
endorsement or a substitute providing equivalent coverage, and
under the commercial umbrella, if any. This insurance shall apply
as primary insurance with respect to any other insurance or self-
insurance programs afforded to the CITY. The Commercial
General Liability insurance policy shall have no exclusions or
endorsements that would alter or nullify: premises/operations,
products/completed operations, contractual, personal injury, or
advertising injury, which are normally contained within the policy,
unless the CITY specifically approves such exclusions in writing.
ii. ENGINEER waives all rights against the CITY and its agents,
officers, directors and employees for recovery of damages to the
extent these damages are covered by the commercial general
liability or commercial umbrella liability insurance maintained in
accordance with this AGREEMENT.
b. Business Auto – the ENGINEER shall maintain business auto liability
and, if necessary, commercial umbrella liability insurance with a limit of
not less than $1,000,000 each accident. Such insurance shall cover
liability arising out of “any auto”, including owned, hired, and non-owned
autos, when said vehicle is used in the course of the PROJECT. If the
engineer owns no vehicles, coverage for hired or non-owned is
acceptable.
i. ENGINEER waives all rights against the CITY and its agents,
officers, directors and employees for recovery of damages to the
extent these damages are covered by the business auto liability or
commercial umbrella liability insurance obtained by ENGINEER
pursuant to this AGREEMENT or under any applicable auto
physical damage coverage.
c. Workers’ Compensation – ENGINEER shall maintain workers
compensation and employers’ liability insurance and, if necessary,
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City of Denton, Texas
Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 7 of 16
commercial umbrella liability insurance with a limit of not less than
$100,000.00 each accident for bodily injury by accident or $100,000.00
each employee for bodily injury by disease, with $500,000.00 policy limit.
i. ENGINEER waives all rights against the CITY and its agents,
officers, directors and employees for recovery of damages to the
extent these damages are covered by workers compensation and
employer’s liability or commercial umbrella insurance obtained by
ENGINEER pursuant to this AGREEMENT.
d. Professional Liability – ENGINEER shall maintain professional liability, a
claims-made policy, with a minimum of $1,000,000.00 per claim and
aggregate. The policy shall contain a retroactive date prior to the date of
the AGREEMENT or the first date of services to be performed,
whichever is earlier. Coverage shall be maintained for a period of 5 years
following the completion of the AGREEMENT. An annual certificate of
insurance specifically referencing this PROJECT shall be submitted to
the CITY for each year following completion of the AGREEMENT.
(2) GENERAL INSURANCE REQUIREMENTS
a. Certificates of insurance evidencing that the ENGINEER has obtained all
required insurance shall be attached to this AGREEMENT prior to its
execution.
b. Applicable policies shall be endorsed to name the CITY an Additional
Insured thereon, subject to any defense provided by the policy, as its
interests may appear. The term CITY shall include its employees,
officers, officials, agents, and volunteers as respects the contracted
services.
c. Certificate(s) of insurance shall document that insurance coverage
specified in this AGREEMENT are provided under applicable policies
documented thereon.
d. Any failure on part of the CITY to attach the required insurance
documentation hereto shall not constitute a waiver of the insurance
requirements.
e. A minimum of thirty (30) days notice of cancellation or material change in
coverage shall be provided to the CITY. A ten (10) days notice shall be
acceptable in the event of non-payment of premium. Notice shall be sent
to the respective Department Director (by name), City of Denton, 901
Texas Street, Denton, Texas 76209.
f. Insurers for all policies must be authorized to do business in the State of
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City of Denton, Texas
Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 8 of 16
Texas and have a minimum rating of A:V or greater, in the current A.M.
Best Key Rating Guide or have reasonably equivalent financial strength
and solvency to the satisfaction of Risk Management.
g. Any deductible or self insured retention in excess of $25,000.00 that
would change or alter the requirements herein is subject to approval by
the CITY in writing, if coverage is not provided on a first-dollar basis. The
CITY, at it sole discretion, may consent to alternative coverage
maintained through insurance pools or risk retention groups. Dedicated
financial resources or letters of credit may also be acceptable to the
CITY.
h. Applicable policies shall each be endorsed with a waiver of subrogation
in favor of the CITY as respects the PROJECT.
i. The CITY shall be entitled, upon its request and without incurring
expense, to review the ENGINEER's insurance policies including
endorsements thereto and, at the CITY's discretion; the ENGINEER may
be required to provide proof of insurance premium payments.
j. Lines of coverage, other than Professional Liability, underwritten on a
claims-made basis, shall contain a retroactive date coincident with or
prior to the date of the AGREEMENT. The certificate of insurance shall
state both the retroactive date and that the coverage is claims-made.
k. Coverages, whether written on an occurrence or claims-made basis,
shall be maintained without interruption nor restrictive modification or
changes from date of commencement of the PROJECT until final
payment and termination of any coverage required to be maintained after
final payments.
l. The CITY shall not be responsible for the direct payment of any
insurance premiums required by this AGREEMENT.
m. Sub consultants and subcontractors to/of the ENGINEER shall be
required by the ENGINEER to maintain the same or reasonably
equivalent insurance coverage as required for the ENGINEER. When
sub consultants/subcontractors maintain insurance coverage,
ENGINEER shall provide CITY with documentation thereof on a
certificate of insurance.
K. Independent Consultant
The ENGINEER agrees to perform all services as an independent consultant and not as a
subcontractor, agent, or employee of the CITY. The doctrine of respondeat superior
shall not apply.
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City of Denton, Texas
Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 9 of 16
L. Disclosure
The ENGINEER acknowledges to the CITY that it has made full disclosure in writing of
any existing conflicts of interest or potential conflicts of interest, including personal financial
interest, direct or indirect, in property abutting the proposed PROJECT and business
relationships with abutting property cities. The ENGINEER further acknowledges that it will
make disclosure in writing of any conflicts of interest that develop subsequent to the
signing of this AGREEMENT and prior to final payment under the AGREEMENT.
M. Asbestos or Hazardous Substances
(1) If asbestos or hazardous substances in any form are encountered or suspected,
the ENGINEER will stop its own work in the affected portions of the PROJECT
to permit testing and evaluation.
(2) If asbestos or other hazardous substances are suspected, the CITY may
request the ENGINEER to assist in obtaining the services of a qualified
subcontractor to manage the remediation activities of the PROJECT.
N. Permitting Authorities - Design Changes
If permitting authorities require design changes so as to comply with published design
criteria and/or current engineering practice standards which the ENGINEER should have
been aware of at the time this AGREEMENT was executed, the ENGINEER shall revise
plans and specifications, as required, at its own cost and expense. However, if design
changes are required due to the changes in the permitting authorities' published design
criteria and/or practice standards criteria which are published after the date of this
AGREEMENT which the ENGINEER could not have been reasonably aware of, the
ENGINEER shall notify the CITY of such changes and an adjustment in compensation will
be made through an amendment to this AGREEMENT.
O. Schedule
ENGINEER shall manage the PROJECT in accordance with the schedule developed per
Attachment A to this AGREEMENT.
P. Equal Opportunity
(1) Equal Employment Opportunity: ENGINEER and ENGINEER’s agents
shall engage in any discriminatory employment practice. No person shall, on
the grounds of race, sex, sexual orientation, age, disability, creed, color, genetic
testing, or national origin, be refused the benefits of, or be otherwise subjected
to discrimination under any activities resulting from this AGREEMENT.
(2) Americans with Disabilities Act (ADA) Compliance: ENGINEER and
ENGINEER’s agents shall not engage in any discriminatory employment
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City of Denton, Texas
Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 10 of 16
practice against individuals with disabilities as defined in the ADA.
SECTION 5
Obligations of the City
A. City-Furnished Data
ENGINEER may rely upon the accuracy, timeliness, and completeness of the information
provided by the CITY.
B. Access to Facilities and Property
The CITY will make its facilities accessible to the ENGINEER as required for the
ENGINEER's performance of its services. The CITY will perform, at no cost to the
ENGINEER, such tests of equipment, machinery, pipelines, and other components of the
CITY's facilities as may be required in connection with the ENGINEER's services. The
CITY will be responsible for all acts of the CITY's personnel.
C. Advertisements, Permits, and Access
Unless otherwise agreed to in the Scope of Services, the CITY will obtain, arrange, and
pay for all advertisements for bids; permits and licenses required by local, state, or federal
authorities; and land, easements, rights-of-way, and access necessary for the
ENGINEER's services or PROJECT construction.
D. Timely Review
The CITY will examine the ENGINEER's studies, reports, sketches, drawings,
specifications, proposals, and other documents; obtain advice of an attorney, insurance
counselor, accountant, auditor, bond and financial advisors, and other consultants as the
CITY deems appropriate; and render in writing decisions required by the CITY in a timely
manner in accordance with the PROJECT schedule prepared in accordance with
Attachment A.
E. Prompt Notice
The CITY will give prompt written notice to the ENGINEER whenever CITY observes or
becomes aware of any development that affects the scope or timing of the ENGINEER's
services or of any defect in the work of the ENGINEER or construction contractors.
F. Asbestos or Hazardous Substances Release.
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City of Denton, Texas
Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 11 of 16
(1) CITY acknowledges ENGINEER will perform part of the work at CITY's
facilities that may contain hazardous materials, including asbestos containing
materials, or conditions, and that ENGINEER had no prior role in the
generation, treatment, storage, or disposition of such materials. In
consideration of the associated risks that may give rise to claims by third
parties or employees of City, City hereby releases ENGINEER from any
damage or liability related to the presence of such materials.
(2) The release required above shall not apply in the event the discharge, release
or escape of hazardous substances, contaminants, or asbestos is a result of
ENGINEER’s negligence or if ENGINEER brings such hazardous substance,
contaminant or asbestos onto the PROJECT.
G. Contractor Indemnification and Claims
The CITY agrees to include in all construction contracts the provisions of Article IV.E.
regarding the ENGINEER's Personnel at Construction Site, and provisions providing for
contractor indemnification of the CITY and the ENGINEER for contractor's negligence.
H. Contractor Claims and Third-Party Beneficiaries
(1) The CITY agrees to include the following clause in all contracts with
construction contractors and equipment or materials suppliers:
"Contractors, subcontractors and equipment and materials
suppliers on the PROJECT, or their sureties, shall maintain no
direct action against the ENGINEER, its officers, employees, and
subcontractors, for any claim arising out of, in connection with, or
resulting from the engineering services performed. Only the CITY
will be the beneficiary of any undertaking by the ENGINEER."
(2) This AGREEMENT gives no rights or benefits to anyone other than the CITY
and the ENGINEER and there are no third-party beneficiaries.
(3) The CITY will include in each agreement it enters into with any other entity or
person regarding the PROJECT a provision that such entity or person shall
have no third-party beneficiary rights under this AGREEMENT.
(4) Nothing contained in this Section H. shall be construed as a waiver of any right
the CITY has to bring a claim against ENGINEER.
I. CITY's Insurance
(1) The CITY may maintain property insurance on certain pre-existing structures
associated with the PROJECT.
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City of Denton, Texas
Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 12 of 16
(2) The CITY may secure Builders Risk/Installation insurance at the replacement
cost value of the PROJECT. The CITY may provide ENGINEER a copy of the
policy or documentation of such on a certificate of insurance.
J. Litigation Assistance
The Scope of Services does not include costs of the ENGINEER for required or requested
assistance to support, prepare, document, bring, defend, or assist in litigation undertaken
or defended by the CITY. In the event CITY requests such services of the ENGINEER, this
AGREEMENT shall be amended or a separate agreement will be negotiated between the
parties.
K. Changes
The CITY may make or approve changes within the general Scope of Services in this
AGREEMENT. If such changes affect the ENGINEER's cost of or time required for
performance of the services, an equitable adjustment will be made through an amendment
to this AGREEMENT with appropriate CITY approval.
SECTION 6
General Legal Provisions
A. Authorization to Proceed
ENGINEER shall be authorized to proceed with this AGREEMENT upon receipt of a
written Notice to Proceed from the CITY.
B. Reuse of Project Documents
All designs, drawings, specifications, documents, and other work products of the
ENGINEER, whether in hard copy or in electronic form, are instruments of service for this
PROJECT, whether the PROJECT is completed or not. Reuse, change, or alteration by
the CITY or by others acting through or on behalf of the CITY of any such instruments of
service without the written permission of the ENGINEER will be at the CITY's sole risk.
The CITY shall own the final designs, drawings, specifications and documents.
C. Force Majeure
The ENGINEER is not responsible for damages or delay in performance caused by acts of
God, strikes, lockouts, accidents, or other events beyond the control of the ENGINEER
that prevent ENGINEER’s performance of its obligations hereunder.
D. Termination
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City of Denton, Texas
Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 13 of 16
(1) This AGREEMENT may be terminated:
a. by the City for its convenience upon 30 days' written notice to
ENGINEER.
b. by either the CITY or the ENGINEER for cause if either party fails
substantially to perform through no fault of the other and the
nonperforming party does not commence correction of such
nonperformance within 5 days’ written notice or thereafter fails to
diligently complete the correction.
(2) If this AGREEMENT is terminated for the convenience of the City, the
ENGINEER will be paid for termination expenses as follows:
a. Cost of reproduction of partial or complete studies, plans, specifications
or other forms of ENGINEER'S work product;
b. Out-of-pocket expenses for purchasing electronic data files and other
data storage supplies or services;
c. The time requirements for the ENGINEER'S personnel to document the
work underway at the time of the CITY'S termination for convenience so
that the work effort is suitable for long time storage.
(3) Prior to proceeding with termination services, the ENGINEER will submit to the
CITY an itemized statement of all termination expenses. The CITY'S approval
will be obtained in writing prior to proceeding with termination services.
E. Suspension, Delay, or Interruption to Work
The CITY may suspend, delay, or interrupt the services of the ENGINEER for the
convenience of the CITY. In the event of such suspension, delay, or interruption, an
equitable adjustment in the PROJECT's schedule, commitment and cost of the
ENGINEER's personnel and subcontractors, and ENGINEER's compensation will be
made.
F. Indemnification
IN ACCORDANCE WITH TEXAS LOCAL GOVERNMENT CODE SECTION 271.904,
THE ENGINEER SHALL INDEMNIFY OR HOLD HARMLESS THE CITY AGAINST
LIABILITY FOR ANY DAMAGE COMMITTED BY THE ENGINEER OR ENGINEER’S
AGENT, CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH
THE ENGINEER EXERCISES CONTROL TO THE EXTENT THAT THE DAMAGE IS
CAUSED BY OR RESULTING FROM AN ACT OF NEGLIGENCE, INTENTIONAL
TORT, INTELLECTUAL PROPERTY INFRINGEMENT, OR FAILURE TO PAY A
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City of Denton, Texas
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SUBCONTRACTOR OR SUPPLIER. CITY IS ENTITLED TO RECOVER ITS
REASONABLE ATTORNEY’S FEES IN PROPORTION TO THE ENGINEER’S
LIABILITY.
G. Assignment
Neither party shall assign all or any part of this AGREEMENT without the prior written
consent of the other party.
H. Jurisdiction
The law of the State of Texas shall govern the validity of this AGREEMENT, its
interpretation and performance, and any other claims related to it. The venue for any
litigation related to this AGREEMENT shall be Denton County, Texas.
I. Severability and Survival
If any of the provisions contained in this AGREEMENT are held for any reason to be
invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability
will not affect any other provision, and this AGREEMENT shall be construed as if such
invalid, illegal, or unenforceable provision had never been contained herein. Sections 5.F.,
6.B., 6.D., 6.F., 6.H., and 6.I. shall survive termination of this AGREEMENT for any cause.
J. Observe and Comply
ENGINEER shall at all times observe and comply with all federal and State laws and
regulations and with all City ordinances and regulations which in any way affect this
AGREEMENT and the work hereunder, and shall observe and comply with all orders, laws
ordinances and regulations which may exist or may be enacted later by governing bodies
having jurisdiction or authority for such enactment. No plea of misunderstanding or
ignorance thereof shall be considered. ENGINEER AGREES TO DEFEND, INDEMNIFY
AND HOLD HARMLESS CITY AND ALL OF ITS OFFICERS, AGENTS AND
EMPLOYEES FROM AND AGAINST ALL CLAIMS OR LIABILITY ARISING OUT OF
THE VIOLATION OF ANY SUCH ORDER, LAW, ORDINANCE, OR REGULATION,
WHETHER IT BE BY ITSELF OR ITS EMPLOYEES.
K. Immigration Nationality Act
ENGINEER shall verify the identity and employment eligibility of its employees who
perform work under this AGREEMENT, including completing the Employment Eligibility
Verification Form (I-9). Upon request by CITY, ENGINEER shall provide CITY with
copies of all I-9 forms and supporting eligibility documentation for each employee who
performs work under this AGREEMENT. ENGINEER shall adhere to all Federal and
State laws as well as establish appropriate procedures and controls so that no services
will be performed by any ENGINEER employee who is not legally eligible to perform
such services. ENGINEER SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS
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City of Denton, Texas
Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 15 of 16
FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS
PARAGRAPH BY ENGINEER, ENGINEER’S EMPLOYEES, SUBCONTRACTORS,
AGENTS, OR LICENSEES. CITY, upon written notice to ENGINEER, shall have the
right to immediately terminate this AGREEMENT for violations of this provision by
ENGINEER.
L. Prohibition On Contracts With Companies Boycotting Israel
ENGINEER acknowledges that in accordance with Chapter 2270 of the Texas
Government Code, CITY is prohibited from entering into a contract with a company for
goods or services unless the contract contains a written verification from the company
that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the
contract. The terms “boycott Israel” and “company” shall have the meanings ascribed to
those terms in Section 808.001 of the Texas Government Code. By signing this
AGREEMENT, ENGINEER certifies that ENGINEER’S signature provides written
verification to the CITY that ENGINEER: (1) does not boycott Israel; and (2) will
not boycott Israel during the term of the AGREEMENT. Failure to meet or maintain
the requirements under this provision will be considered a material breach.
M. Prohibition On Contracts With Companies Doing Business with Iran, Sudan, or
a Foreign Terrorist Organization
Section 2252 of the Texas Government Code restricts CITY from contracting with
companies that do business with Iran, Sudan, or a foreign terrorist organization. By
signing this AGREEMENT, ENGINEER certifies that ENGINEER’S signature
provides written verification to the CITY that ENGINEER, pursuant to Chapter
2252, is not ineligible to enter into this AGREEMENT and will not become
ineligible to receive payments under this AGREEMENT by doing business with
Iran, Sudan, or a foreign terrorist organization. Failure to meet or maintain the
requirements under this provision will be considered a material breach.
N. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS
No officer, employee, independent consultant, or elected official of the City who is
involved in the development, evaluation, or decision-making process of the performance
of any solicitation shall have a financial interest, direct or indirect, in the Contract
resulting from that solicitation as defined in the City’s Ethic Ordinance 18-757 and in the
City Charter chapter 2 article XI(Ethics). Any willful violation of this section shall
constitute impropriety in office, and any officer or employee guilty thereof shall be
subject to disciplinary action up to and including dismissal. Any violation of this
provision, with the knowledge, expressed or implied, of the Contractor shall render the
Contract voidable by the City. The Contractor shall complete and submit the City’s
Conflict of Interest Questionnaire.
O. Agreement Documents
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City of Denton, Texas
Standard Agreement for Engineering Related Design Services Revised Date: 9/6/18 Page 16 of 16
This AGREEMENT, including its attachments and schedules, constitutes the entire
AGREEMENT, which supersedes all prior written or oral understandings, and may only be
changed by a written amendment executed by both parties. This AGREEMENT may be
executed in one or more counterparts and each counterpart shall, for all purposes, be
deemed an original, but all such counterparts shall together constitute but one and the
same instrument. The following attachments and schedules are hereby made a part of
this AGREEMENT:
Attachment A - Scope of Services, Compensation, Project Schedule, and Location
Map
These documents make up the AGREEMENT documents and what is called for by one
shall be as binding as if called for by all. In the event of an inconsistency or conflict in
any of the provisions of the AGREEMENT documents, the inconsistency or conflict shall
be resolved by giving precedence first to the written AGREEMENT then to the
AGREEMENT documents in the order in which they are listed above.
Duly executed by each party’s designated representative to be effective on the date
subscribed by the City Manager.
BY:
CITY OF DENTON, TEXAS
BY:
ENGINEER
Authorized Agent
Date: ________________________
ALPHA TESTING, INC.
Authorized Signor, Title
Date:____________________________
THIS AGREEMENT HAS BEEN
BOTH REVIEWED AND APPROVED
as to financial and operational
obligations and business terms.
_________________________
Signature
_________________________
Title
_________________________
Department
Date: ______________
DocuSign Envelope ID: 8D9E2A7B-0A85-4715-9610-52F22FF8B086
Vice President
8/3/2021
Water Utilities
8/3/2021
Director, Water Utilities
8/3/2021
Senior Buyer
Dallas • Fort Worth • Houston • San Antonio
Geotechnical
Construction Materials
Environmental
TBPE Firm No. 813
5058 Brush Creek Road
Fort Worth, Texas 76119
Tel: 817-496-5600
Fax: 817-496-5608
www.alphatesting.com
July 15, 2021
City of Denton - Water Utilities
1527 S. Mayhill Rd.
Denton, TX 76208
Attention: Mr. Chris Campbell
Re: Proposal Geotechnical Exploration
Windsor Drive Interceptor
Off Windsor Drive
Denton, Texas
ALPHA Proposal No. 85294
ALPHA TESTING, INC. (hereinafter “ALPHA”) is hereby pleased to submit to City of Denton - Water Utilities
(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 regarding the subsurface profile for installation of a new
sanitary sewer line by drilling test borings along Windsor Drive, between Fireside Lane and Bonnie Brae Street. Laboratory
tests will be performed on selected samples to aid in soil classification. Engineering analyses and recommendations are not
included in the scope of work.
Scope of Work
As requested, we will explore the subsurface soil and/or rock conditions at the site by drilling borings as follows:
one (1) test boring to a depth 25 ft
two (2) test borings to a depth of 20 ft
one (1) test boring to a depth of 15 ft
three (3) test borings to a depth of 10 ft
two (2) test borings to a depth of 5 ft
At the completion of drilling operations, boreholes will be backfilled and plugged with soil cuttings and/or sand, and any
pavement that is penetrated will be patched with similar material. Settlement of boreholes may occur over time. ALPHA
shall not be responsible for any settlement of boreholes that may occur after initial backfilling. The number and depth of the
test borings required to obtain the necessary field data may vary depending on the actual soil and/or rock conditions
encountered. If unusual subsurface conditions are encountered and alternate field work is indicated, we will consult with the
client prior to initiating any additional services. Please note, regardless of the number of borings performed subsurface
conditions between borings may vary.
The study will also include laboratory tests to evaluate the classification, gradation and certain physical characteristics of the
subsurface soils. The specific types and quantities of tests will be determined based on soil/rock conditions encountered in
the borings. Our laboratories are fully equipped with modern equipment for soil and rock testing and tests are performed by
trained qualified technicians in compliance with the applicable specifications. Field exploration programs are conducted with
drilling equipment operated by experienced and reliable drillers. All field and laboratory staff are supervised by professional
engineers.
Results of the field exploration and laboratory tests will be presented in a written report.
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 3 to 4 weeks from your notification to
proceed. The complete written report would be electronically sent to you within about one (1) week following completion of
the boring operations. Inclement weather could result in delays to the referenced boring operations schedule.
ATTACHMENT A
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Table A
Geotechnical Lump Sum Fee 1,2 $9,300.00
Optional Items:
Traffic Control ($2,900.00 per day)3 $5,800.00
Total $15,100.00
Estimated Time to Complete Study 4 4 to 5 weeks
1 This pricing assumes test boring locations can be accessed using standard, truck-mounted drilling
equipment and drilling will occur during regular business hours (Mon – Fri, 7:00 AM to 6:00 PM).
Weekend or after-hours drilling will incur additional charges. If difficult site conditions are encountered, an
All-Terrain Drilling Unit could be provided for an additional fee of $850.00.
2 Drilling through surface concrete, if necessary, will be charged at an additional $175.00/boring up to
8 inches thickness.
3 We estimate a total of two (2) days of traffic control will be required. However, this could change
depending on conditions encountered.
4 Inclement weather could result in delays to the referenced boring operations schedule.
The above cost estimate is valid for 90 days and is based on Client providing suitable access and entry to test boring locations
during normal business hours. Client represents that it has full authority from the current landowner to engage ALPHA to
perform this study. The pricing provided above assumes test boring locations can be accessed using standard, truck-mounted
drilling equipment. Surveying of boring locations and elevations is not included in the cost estimate. If difficult site
conditions are encountered, alternate pricing may be provided using an All-Terrain Drilling Unit or other portable equipment.
Prior to start of drilling, ALPHA will contact Texas One-Call utility clearance (Texas811) to mark and clear utilities at the
boring locations. The Client shall provide any known site specific utility information upon acceptance of this proposal.
ALPHA is not responsible for damage to any below grade utilities of which we are not made aware.
Please note: Our field equipment may rut the site during drilling operations. A concerted effort will be made to minimize
such problems, however, ALPHA is not responsible for re-grading or repairing rutted areas if they develop.
Due to the ever-changing circumstances surrounding the COVID-19 Virus, situations may arise during the performance of
this agreement that affect availability of resources and staff of ALPHA, the Client, other consultants, and public agencies.
Therefore, there could be changes in the referenced schedule and/or project costs. ALPHA will exercise reasonable efforts to
overcome the challenges presented by current circumstances, but ALPHA will not be liable to Client for any delays,
expenses, losses, or damages of any kind arising out of the impact of the COVID-19 Virus.
If this Proposal is acceptable, please have an authorized officer sign in the space provided below in the Proposal Acceptance
Form and return a signed copy via either email or fax, or the signed original to our office. We will consider receipt of a
signed original or copy of this Proposal as our Notice to Proceed. Work cannot be initiated prior to receiving a signed copy
of this Proposal. If a copy is e-mailed or faxed, client consents to such copy of a signature, or electronic signature, as serving
as an original signature. Unless prior arrangements are agreed to in writing, payment for services described in this Proposal
is due within 30 days of invoice date. Payment of the invoice is not contingent on Client’s agreement or acceptance of
ALPHA’s design recommendations or report discussion. If CLIENT objects to any portion of an invoice or report, it shall
notify ALPHA in writing within ten (10) days from the date of actual receipt of the invoice of the amount and nature of the
dispute, and shall timely pay undisputed portions of the invoice.
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Page 3 of 8 ALPHA Proposal No. 85294
By execution of this Proposal, the undersigned Client acknowledges and agrees that the attached “Terms and Conditions”
have been provided or made available to Client and Client agrees that such Terms and Conditions shall be applied to the
present Proposal and shall be fully binding upon Client. The “Terms and Conditions” are attached to this proposal as
“Exhibit A” and are fully incorporated into this Proposal by reference as if set forth herein.
Thank you for this opportunity to offer our services. We look forward to working with you on this project.
Sincerely,
ALPHA TESTING, INC.
Brian J. Hoyt, P.E.
Geotechnical Department Manager
BJH/TAJ
Attachments: Proposal Acceptance Form
“Exhibit A” Terms and Conditions
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Page 4 of 8 ALPHA Proposal No. 85294
GEOTECHNICAL
PROPOSAL ACCEPTANCE FORM
Date: July 15, 2021 ALPHA Proposal No.: 85294
Project Name: Windsor Drive Interceptor
Project Location: Off Windsor Drive, Denton, Texas
CLIENT:
ADDRESS:
CITY/STATE/ZIP:
ATTENTION: TELEPHONE:
EMAIL: FAX:
*****REQUIRED INFORMATION*****(Must be completed in order to process)
Check box if
ACCOUNTS PAYABLE CONTACT: same as above
ADDRESS:
CITY/STATE/ZIP:
EMAIL: TELEPHONE:
Land Owner’s Name:
Address:
City, St. Zip:
Project Legal
Description:
Project County:
The undersigned hereby accepts all the Terms and Conditions set forth in this Proposal and warrants that he/she has full
authority to bind the Client.
PROPOSAL ACCEPTED BY:
Signature Title Date
PRINTED NAME:
REPORT DISTRIBUTION
COMPANY ATTENTION EMAIL ADDRESS
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Page 5 of 8 ALPHA Proposal No. 85294
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.
ALPHA MAKES NO OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SERVICES, AND
EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES; INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF GOOD
AND WORKMANLIKE PERFORMANCE AND OF FITNESS FOR A PARTICULAR PURPOSE.
Section 3: Site Access and Conditions
CLIENT shall grant to, or obtain for, ALPHA unimpeded access to the Project site for all equipment and personnel necessary for the performance of the
Services, and access necessary for ALPHA’s personnel to photograph the Project site. As required to effectuate such access, CLIENT shall notify all owners,
lessees, contractors, subcontractors, and other possessors of the Project site that ALPHA must be allowed free access to the site. CLIENT understands that,
in the normal course of performing the Services, some damage, including but not limited to injury to vegetation, rutting, and cracking of concrete, may occur
as a result of ALPHA’s performance of the Services, and further agrees that ALPHA is not responsible for the correction of any such damage caused by
ALPHA unless otherwise specified in the Proposal. CLIENT is solely responsible for the accuracy of locations for all subterranean structures and
utilities, and CLIENT waives any claim against ALPHA, and shall defend (with counsel acceptable to ALPHA), indemnify, and hold ALPHA
harmless from any claim or liability for injury, damages, or loss by any party, including costs of defense and attorneys’ fees, arising from damage
caused as a result of subterranean structures and utilities not being properly identified or accurately located by CLIENT. In addition, and without
limiting the foregoing, CLIENT shall compensate ALPHA for any consequential damages resulting from any such claim, including without limitation time
spent or expenses incurred by ALPHA in defense of any such claim, with such compensation to be based upon ALPHA’s prevailing fee schedule and
expense reimbursement policy.
Section 4: CLIENT’s Responsibility and Project Understanding
CLIENT shall provide or otherwise make available to ALPHA all information in its possession or subject to its control regarding existing and proposed
conditions at the site. Such information shall include, but not be limited to, plot plans, topographic surveys, hydrographic data, and previous soil data,
including borings, field and laboratory tests, written reports, drawings, plans and specifications. CLIENT shall immediately, but in no event later than
twenty-four (24) hours after its receipt, transmit to ALPHA any new information concerning site conditions that becomes available, and any change in plans
or specifications concerning the Project to the extent such information may affect ALPHA’s performance of the Services. CLIENT shall, upon 24 hours oral
or written notice, provide a representative at the job site to supervise and coordinate the Services.
Additional responsibilities of the CLIENT include: review of ALPHA’s work for overall coordination with the work of other consultants, including any
architects and engineers; with reasonable promptness, but in no event later than 48 hours, provide all available information regarding requirements for
ALPHA’s work; upon request by ALPHA, the CLIENT shall furnish the services of other reasonably required consultants, including surveys, testing
laboratory, etc.; prepare and assemble specifications for the General Conditions and Supplementary Conditions and all architectural components of the
project, and coordinate assembly of ALPHA’s specification sections into a proper format; notify ALPHA immediately if the Client, any architect, or any
engineer becomes aware of any item or condition which in directly, or indirectly, may affect the performance of Alpha’s work and any fault or claimed
deficiency with ALPHA’s work, or nonconformance with the Contract Documents and provide ALPHA a reasonable opportunity to cure any such
deficiency or nonconformance; confer with ALPHA before issuing interpretations or clarifications of the documents prepared by ALPHA; forward to
ALPHA for review and recommendation all construction phase submittals that pertain to ALPHA’s work; and advise ALPHA of the identity and scope of
services of other consultants participating in the Project. Client shall be solely responsible for coordinating the services of its consultants with the services of
ALPHA.
ALPHA shall not be liable for any incomplete or inaccurate information furnished by CLIENT or damages caused by CLIENT’s failure to strictly
adhere to the recommendations of ALPHA contained in any Geotechnical Report, Addendum or other correspondence, and CLIENT shall defend
(with counsel acceptable to ALPHA) indemnify and hold ALPHA harmless against any claims, demands or liability, including costs of defense and
attorneys’ fees, arising out of, related to, or contributed to by such incomplete or inaccurate information or failure to follow the recommendations
of ALPHA. CLIENT waives any claim it might have against ALPHA for damages arising out its failure to timely provide accurate information or
its failure to timely provide new, changed, or additional information, as set forth in the preceding paragraph, and further agrees to indemnify and
hold harmless ALPHA from any claim or liability resulting from CLIENT’s failure to timely provide such new, changed, or additional information.
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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.
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.
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 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.
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Section 11: RISK ALLOCATION AND LIMITATION OF LIABILITY
The parties acknowledge that a variety of risks potentially affect ALPHA by virtue of entering into an agreement to perform
the Services. The parties further acknowledge and agree that there is no disparity in bargaining power between the parties.
IN ORDER FOR CLIENT TO OBTAIN THE BENEFIT OF A LOWER FEE THAN WOULD OTHERWISE BE
AVAILABLE, CLIENT AGREES TO LIMIT ALPHA’S LIABILITY TO CLIENT, AND TO ANY AND ALL
OTHER THIRD PARTIES, FOR CLAIMS ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES
PERFORMED OR TO BE PERFORMED BY ALPHA. ACCORDINGLY, THE CLIENT AGREES THAT THE
TOTAL AGGREGATE LIABILITY OF ALPHA SHALL NOT EXCEED THE TOTAL FEE FOR THE SERVICES
RENDERED ON THE PROJECT, OR $25,000, WHICHEVER IS LOWER, FOR ANY LIABILITIES, INCLUDING
BUT NOT LIMITED TO NEGLIGENT PROFESSIONAL ACTS OR ERRORS OR OMISSIONS, AND CLIENT
AGREES TO INDEMNIFY ALPHA FOR ALL LIABILITIES IN EXCESS OF THE MONETARY LIMITS
ESTABLISHED. Client agrees that in no instance shall ALPHA be responsible, in total or in part, for the errors or
omissions of any other professional, contractor, subcontractor or any other third party. Client also agrees that ALPHA shall
not be responsible for the means, methods, procedures, performance, quality or safety of the construction contractors or
subcontractors, or for their errors or omissions.
Section 12: Discovery of Unanticipated Hazardous Materials
CLIENT represents and warrants that it has made reasonable efforts to discover and has informed ALPHA of known or suspected hazardous materials on or
near the Project site. The parties acknowledge that hazardous materials may exist at a site even if there is no reason to believe they are present. ALPHA and
CLIENT agree that the discovery of such unanticipated hazardous materials constitutes a changed condition that shall require either a re-negotiation of the
scope of ALPHA’s Services or termination of this Agreement without cause. CLIENT recognizes that the discovery of hazardous materials may necessitate
immediate protective measures to safeguard the public health and safety and shall compensate ALPHA for measures that, in ALPHA’s sole professional
discretion, are necessary and justified to preserve and protect the health and safety of site personnel and the public. CLIENT also shall compensate ALPHA
for any equipment decontamination or other costs incident to the discovery of unanticipated hazardous materials. ALPHA shall notify CLIENT as soon as
practicable should unexpected hazardous materials be encountered at the site that pose a threat to human health, safety and the environment. CLIENT agrees
that, in the event of the discovery of hazardous materials at the site, it shall report such discovery to the proper authorities as required by Federal, State, and
local regulations. CLIENT agrees to make the required report at the recommendation of ALPHA, or, if unable to do so, authorizes ALPHA to make such
report. CLIENT shall also inform the Project site owner in the event that hazardous materials are encountered at the site.
Notwithstanding any other provision of this Agreement, CLIENT waives any claim against ALPHA, and to the maximum extent permitted by law, agrees to
defend, indemnify, and hold ALPHA harmless from any claim, liability and/or defense costs for damage, injury or loss arising from or in any way related to
the presence of hazardous materials on the project site, including any costs created by delay of the project and any costs associated with possible reduction of
the property’s value. CLIENT is responsible for ultimate disposal of any samples secured by ALPHA that are found to be contaminated, at CLIENT’s sole
cost and expense.
Section 13: Ground Water Contamination
CLIENT acknowledges that it is impossible for ALPHA to discover, ascertain or know the exact composition of a site’s subsurface, even after conducting a
comprehensive exploratory program. As a result, there is a risk that drilling and sampling may result in contamination of certain subsurface areas. Although
ALPHA will take reasonable precautions to avoid such an occurrence, CLIENT waives any claim against ALPHA for, and shall defend, indemnify and hold
ALPHA harmless from, any claim or liability for injury or loss which may arise as a result of subsurface contamination caused by drilling, sampling, testing
or monitoring well installation. CLIENT shall also adequately compensate ALPHA for any time spent and expenses incurred in defense of any such claim.
Section 14: Insurance
No insurance carried by ALPHA shall be deemed to limit in any way the responsibility of any contractor or subcontractor for damages resulting from their
services in connection with the Project. CLIENT shall include, or cause to be included, in the Project’s construction contract such requirements for insurance
coverage and performance bonds to be secured and maintained by the Project contractor as CLIENT deems adequate to insure and indemnify CLIENT and
ALPHA against claims for damages, and to insure compliance of work performance and materials with Project requirements.
Section 15: Indemnity
ALPHA AND THE CLIENT SHALL EACH INDEMNIFY AND HOLD THE OTHER HARMLESS FROM AND
AGAINST ANY CLAIMS FOR BODILY INJURY OR DAMAGE TO TANGIBLE PROPERTY RESULTING FROM: (A)
NEGLIGENT ERROR, OMISSION OR ACT OF THE INDEMNITOR OR THE INDEMNITOR’S OFFICERS,
SERVANTS, EMPLOYEES OR SUBCONSULTANTS IN THE PERFORMANCE OF THE WORK HEREUNDER; OR
(B) NEGLIGENT FAILURE OF THE INDEMNITOR OR THE INDEMNITOR’S OFFICERS, SERVANTS, EMPLOYEES
OR SUBCONSULTANTS TO COMPLY WITH LAWS OR REGULATIONS; OR (C) NEGLIGENT FAILURE OF THE
INDEMNITOR TO PERFORM UNDER ANY CONTRACT WITH ANY OTHER PARTY, ITS, OFFICERS, SERVANTS,
EMPLOYEES, SUBCONSULTANTS OR CLIENTS. THIS INDEMNITY OBLIGATION SHALL SURVIVE
PERFORMANCE OF THE SERVICES HEREUNDER AND SHALL BE LIMITED BY THE TERMS AND CONDITIONS
REFRENCED IN SECTION 11, ABOVE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ALPHA WILL NOT INDEMNIFY CLIENT FOR ITS OWN NEGLIGENCE.
Section 16: Invoices and Payment Terms
In consideration for the performance of the Services, ALPHA shall be paid an amount and according to terms set forth in the Proposal (“Project Cost”);
however, if payment terms are not listed in the Proposal, payment for Services shall be payable within thirty (30) days of ALPHA’s invoice date (the
“Payment Due Date”). All payments must be paid by the Payment Due Date, and shall not be contingent upon CLIENT’s receipt of separate payment,
DocuSign Envelope ID: 8D9E2A7B-0A85-4715-9610-52F22FF8B086
Page 8 of 8 ALPHA Proposal No. 85294
financing or closing on the project property, or other conditions whatsoever. If CLIENT objects to any portion of an invoice, it shall notify ALPHA in
writing within ten (10) days from the date of actual receipt of the invoice of the amount and nature of the dispute, and shall timely pay undisputed portions of
the invoice. Past due invoices and any sums improperly withheld by CLIENT shall accrue interest thereon at the rate of one percent (1%) per month, or the
maximum rate allowed by law, whichever is lower. CLIENT agrees to pay all costs and expenses, including reasonable attorney’s fees and costs, incurred by
ALPHA should collection proceedings be necessary to collect on Client’s overdue account. Unless the Proposal specifies the Project Cost as not-to-exceed
or lump sum, CLIENT acknowledges that any cost estimates and schedules provided by ALPHA may be subject to change based upon the actual Site
conditions encountered, weather delays and impact and any other requirements of the CLIENT and should be used by CLIENT for planning purposes only.
ALPHA will endeavor to perform the Services within the estimates but will notify CLIENT if estimates are likely to be exceeded. In the event of changed
site conditions or other conditions requiring additional time, CLIENT agrees to pay the reasonable and necessary increases resulting from such additional
time.
Unless otherwise specified in the Proposal, CLIENT will be solely responsible for all applicable federal, state or local duty, import, sales, use, business,
occupation, gross receipts or similar tax on the Services, and for any applicable duty, import sales, uses, business, occupation, gross receipts or tax and
shipping charges relating to equipment and repair parts furnished in connection with the Services. In the event ALPHA is required to respond to any
subpoena or provide testimony (as a fact or expert witness) related to the Services, CLIENT shall pay ALPHA for time and expenses in accordance with
ALPHA’s then current fee schedule.
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.
Section 18: Resolution of Disputes
(a) Mediation. All claims, disputes, controversies or matters in question arising out of, or relating to, this Agreement or any breach thereof, including but not
limited to disputes arising out of alleged design defects, breaches of contract, errors, omissions, or acts of professional negligence, (collectively “Disputes”) shall
be submitted to mediation before and as a condition precedent to pursuing any other remedy. Upon written request by either party to this Agreement for mediation
of any dispute, CLIENT and ALPHA shall select a neutral mediator by mutual agreement. Such selection shall be made within ten (10) calendar days of the date
of receipt by the other party of the written request for mediation. In the event of failure to reach such agreement or in any instance when the selected mediator is
unable or unwilling to serve and a replacement mediator cannot be agreed upon by CLIENT and ALPHA within ten (10) calendar days, a mediator shall be
chosen as specified in the Construction Industry Mediation Rules of the American Arbitration Association then in effect, or any other appropriate rules upon
which the parties may agree.
(b) Arbitration. Any claim dispute or other matter in question arising out of or related to this Agreement subject to, but not resolved by, mediation shall be
subject to arbitration, which, unless the parties mutually agree otherwise, shall be administered by the American Arbitration Association in accordance with
its Construction Industry Arbitration Rules in effect of the date of this Agreement. A demand for arbitration shall be made in writing, delivered to the other
party of this Agreement, and filed with the person or entity administering the arbitration. A demand for arbitration shall be made no earlier that concurrently
with the filing of a request for mediation, but in no event, shall it be made after the date when the institution of legal or equitable proceedings based on the
claim, dispute or other matter in question would be barred by the applicable statute of limitations. For statute of limitations purposes, receipt of a written
demand for arbitration by the person or entity administering the arbitration shall constitute the institution of legal or equitable proceedings based on the
claim, dispute or other matter in question. The forgoing agreement to arbitrate, and other agreements to arbitrate with an additional person or entity duly
consented to by parties to the Agreement, shall be specifically enforceable in accordance with applicable law in any court having jurisdiction thereof. The
award rendered by the arbitrator(s) shall be final, and judgement may be entered upon it in accordance with applicable law in any court having jurisdiction
thereof.
(c) Consolidation or Joinder. Either party, as its sole discretion, may consolidate an arbitration conducted under this Agreement with any other arbitration to
which it is a party provided that (1) the arbitration agreement governing the other arbitration permits consolidation; (2) the arbitrations to be consolidated
substantially involve common questions of law or fact; and (3) the arbitrations employ materially similar procedural rules and methods for selecting
arbitrator(s). Either party, at its sole discretion, may include by joinder persons or entities substantially involved in a common question of lay or fact whose
presence is required if complete relief is to be accorded in arbitration, provided that the party sought to be joined consents in writing to such joinder.
Consent to arbitration involving an additional person or entity shall not constitute consent to arbitration of any claim, dispute or other matter in question not
described in the written consent. The CLIENT and ALPHA grant to any person or entity made a party to an arbitration conducted under this Section 8.3,
whether by joinder or consolidation, the same rights of joinder and consolidation as the Owner and Architect under this Agreement.
The provisions of this Section 18 shall survive the termination of this Agreement.
Section 19: Governing Law and Survival
The validity of this Agreement, these terms, their interpretation and performance shall be governed by and construed and enforced in accordance with the laws of
the State of Texas without regard to its conflict of laws rules or similar principles which would refer to and apply the substantive laws of another jurisdiction, and
applicable international conventions and treaties. The parties hereto hereby consent and agree that venue of any arbitration action shall lie exclusively in Dallas
County, Texas, and the parties hereby consent to the exclusive jurisdiction of the state courts located in Dallas County, Texas to hear and determine any claims,
disputes, or award between the parties arising out of such arbitration, or for any matter found to not arise under the parties’ arbitration agreement. The parties
hereto expressly submit and consent in advance to such jurisdiction and hereby waive any objection to such jurisdiction. If any of the provisions contained in this
agreement are held illegal, invalid, or unenforceable, the enforceability of the remaining provisions will not be impaired.
DocuSign Envelope ID: 8D9E2A7B-0A85-4715-9610-52F22FF8B086
CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ
For vendor or other person doing business with local governmental entity
This questionnaire reflects changes made to the law by H.B. 23, 84th Leg., Regular Session.
This questionnaire is being filed in accordance with Chapter 176, Local Government Code, by a vendor who has a business relationship as
defined by Section 176.001(1-a) with a local governmental entity and the vendor meets requirements under Section 176.006(a).
By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the
date the vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1), Local Government Code.
A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code. An offense under this section is a
misdemeanor.
1 Name of vendor who has a business relationship with local governmental entity.
2
Check this box if you are filing an update to a previously filed questionnaire.
(The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th business day
after the date on which you became aware that the originally filed questionnaire was incomplete or inaccurate.)
3 Name of local government officer about whom the information in this section is being disclosed.
Name of Officer
This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the vendor has an employment or other business relationship
as defined by Section 176.001(1-a), Local Government Code. Attach additional pages to this Form CIQ as necessary.
A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the vendor?
Yes No
B. Is the vendor receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer
named in this section AND the taxable income is not received from the local governmental entity?
Yes No
C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an
officer or director, or holds an ownership of one percent or more?
Yes No
D. Describe each employment or business and family relationship with the local government officer named in this section.
4
I have no Conflict of Interest to disclose.
5
Signature of vendor doing business with the governmental entity Date
DocuSign Envelope ID: 8D9E2A7B-0A85-4715-9610-52F22FF8B086
CIQ
ALPHA TESTING, INC.
8/3/2021
Certificate Of Completion
Envelope Id: 8D9E2A7B0A854715961052F22FF8B086 Status: Completed
Subject: ***Purchasing Approval*** 7574-006 Windsor Wastewater Capacity
Source Envelope:
Document Pages: 26 Signatures: 4 Envelope Originator:
Certificate Pages: 5 Initials: 0 Crystal Westbrook
AutoNav: Enabled
EnvelopeId Stamping: Enabled
Time Zone: (UTC-06:00) Central Time (US & Canada)
901B Texas Street
Denton, TX 76209
crystal.westbrook@cityofdenton.com
IP Address: 198.49.140.104
Record Tracking
Status: Original
8/2/2021 2:33:58 PM
Holder: Crystal Westbrook
crystal.westbrook@cityofdenton.com
Location: DocuSign
Signer Events Signature Timestamp
Crystal Westbrook
crystal.westbrook@cityofdenton.com
Senior Buyer
City of Denton
Security Level: Email, Account Authentication
(None)
Completed
Using IP Address: 198.49.140.104
Sent: 8/2/2021 2:37:59 PM
Viewed: 8/2/2021 2:41:47 PM
Signed: 8/2/2021 2:42:56 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Theodore A. (Tony) Janish
tjanish@alphatesting.com
Vice President
Security Level: Email, Account Authentication
(None)Signature Adoption: Pre-selected Style
Using IP Address: 24.173.0.242
Sent: 8/2/2021 2:42:58 PM
Viewed: 8/2/2021 2:57:59 PM
Signed: 8/3/2021 8:09:08 AM
Electronic Record and Signature Disclosure:
Accepted: 8/2/2021 2:57:59 PM
ID: a20d2d2c-7981-4ca0-9483-a40788f940b4
Stephen D. Gay
stephen.gay@cityofdenton.com
Director, Water Utilities
Security Level: Email, Account Authentication
(None)Signature Adoption: Pre-selected Style
Using IP Address: 198.49.140.10
Sent: 8/3/2021 8:09:10 AM
Viewed: 8/3/2021 8:33:10 AM
Signed: 8/3/2021 8:40:41 AM
Electronic Record and Signature Disclosure:
Accepted: 8/3/2021 8:33:10 AM
ID: d60edee9-d1fe-4788-a6bc-57b6985c775d
Crystal Westbrook
crystal.westbrook@cityofdenton.com
Senior Buyer
City of Denton
Security Level: Email, Account Authentication
(None)
Signature Adoption: Pre-selected Style
Using IP Address: 198.49.140.10
Sent: 8/3/2021 8:40:43 AM
Viewed: 8/3/2021 9:01:10 AM
Signed: 8/3/2021 9:01:20 AM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
In Person Signer Events Signature Timestamp
Editor Delivery Events Status Timestamp
Agent Delivery Events Status Timestamp
Intermediary Delivery Events Status Timestamp
Certified Delivery Events Status Timestamp
Carbon Copy Events Status Timestamp
Cheyenne Defee
cheyenne.defee@cityofdenton.com
Contract Administrator
City of Denton
Security Level: Email, Account Authentication
(None)
Sent: 8/3/2021 9:01:22 AM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Annie Bunger
annie.bunger@cityofdenton.com
Contract Control Specialist
City of Denton
Security Level: Email, Account Authentication
(None)
Sent: 8/3/2021 9:01:22 AM
Viewed: 8/3/2021 9:45:09 AM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Witness Events Signature Timestamp
Notary Events Signature Timestamp
Envelope Summary Events Status Timestamps
Envelope Sent Hashed/Encrypted 8/2/2021 2:37:59 PM
Certified Delivered Security Checked 8/3/2021 9:01:10 AM
Signing Complete Security Checked 8/3/2021 9:01:20 AM
Completed Security Checked 8/3/2021 9:01:22 AM
Payment Events Status Timestamps
Electronic Record and Signature Disclosure
ELECTRONIC RECORD AND SIGNATURE DISCLOSURE
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If you elect to receive required notices and disclosures only in paper format, it will slow the
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and then wait until we receive back from you your acknowledgment of your receipt of such
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All notices and disclosures will be sent to you electronically
Unless you tell us otherwise in accordance with the procedures described herein, we will provide
electronically to you through your DocuSign user account all required notices, disclosures,
authorizations, acknowledgements, and other documents that are required to be provided or
made available to you during the course of our relationship with you. To reduce the chance of
you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required
notices and disclosures to you by the same method and to the same address that you have given
us. Thus, you can receive all the disclosures and notices electronically or in paper format through
the paper mail delivery system. If you do not agree with this process, please let us know as
described below. Please also see the paragraph immediately above that describes the
consequences of your electing not to receive delivery of the notices and disclosures
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Electronic Record and Signature Disclosure created on: 7/21/2017 3:59:03 PM
Parties agreed to: Theodore A. (Tony) Janish, Stephen D. Gay
How to contact City of Denton:
You may contact us to let us know of your changes as to how we may contact you electronically,
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