JOB ORDER CONTRACTING€¦ · Order Contracting (JOC) Solution (Gordian JOC SolutionTM) for their...

APPENDIX 1 to CSP # 16-01-21

MASTER JOC AGREEMENT

between

Houston Independent School District, a political subdivision of the State of Texas

and

_________________________________

for

JOB ORDER CONTRACTING General Construction Services

CSP # 16-01-21

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TABLE OF CONTENTS PAGE ARTICLE 1 DEFINITIONS ...................................................................................................... 4 ARTICLE 2 WORK TO BE PERFORMED .............................................................................. 6 ARTICLE 3 JOB ORDERS ...................................................................................................... 6 ARTICLE 4 KEY STAFF MEMBERS ...................................................................................... 6 ARTICLE 5 DETAILED SCOPE OF WORK & SPECIFICATIONS AND DRAWINGS ........... 7 ARTICLE 6 USE OF SPECIFICATIONS, DRAWINGS AND NOTES .................................... 8 ARTICLE 7 HISD-FURNISHED DOCUMENTS ...................................................................... 8 ARTICLE 8 PERMITS AND RESPONSIBILITIES .................................................................. 8 ARTICLE 9 MATERIAL AND WORKMANSHIP ...................................................................... 9 ARTICLE 10 TESTING OF MATERIALS .................................................................................. 9 ARTICLE 11 LAYOUT OF WORK .......................................................................................... 10 ARTICLE 12 SITE INVESTIGATION AND CONDITIONS AFFECTING THE WORK ............ 10 ARTICLE 13 DIFFERING SITE CONDITIONS ....................................................................... 10 ARTICLE 14 CONTRACT TERM ............................................................................................ 11 ARTICLE 15 OPTION TO EXTEND THE TERM OF STSHE CONTRACT ............................ 11 ARTICLE 16 COMPENSATION .............................................................................................. 11 ARTICLE 17 INVOICING AND PAYMENTS ........................................................................... 12 ARTICLE 18 CONSTRUCTION SCHEDULE ......................................................................... 13 ARTICLE 19 SUPERVISION BY CONTRACTOR .................................................................. 14 ARTICLE 20 SUBCONTRACTORS ........................................................................................ 14 ARTICLE 21 INSPECTION OF CONSTRUCTION ................................................................. 15 ARTICLE 22 OPERATIONS AND STORAGE AREAS ........................................................... 16 ARTICLE 23 PROTECTION OF EXISTING VEGETATION, STRUCTURES, UTILITIES AND IMPROVEMENTS ..................................................................................... 16 ARTICLE 24 CLEANING UP AND REFUSE DISPOSAL ....................................................... 16 ARTICLE 25 WARRANTY OF CONSTRUCTION .................................................................. 17 ARTICLE 26 CHANGES ......................................................................................................... 18 ARTICLE 27 PRICING ADJUSTMENTS ................................................................................ 20 ARTICLE 28 EXTRAS AND CLAIMS ...................................................................................... 20 ARTICLE 29 SUSPENSION OF WORK ................................................................................. 22 ARTICLE 30 DISPUTES ......................................................................................................... 22 ARTICLE 31 TERMINATION FOR CONVENIENCE OF HISD .............................................. 23 ARTICLE 32 DEFAULT ........................................................................................................... 23 ARTICLE 33 SAFETY/HAZARDOUS MATERIALS ................................................................ 24 ARTICLE 34 USE AND POSSESSION PRIOR TO COMPLETION ....................................... 26 ARTICLE 35 NON-PREPRICED ITEMS OF WORK .............................................................. 26 ARTICLE 36 OTHER CONTRACTS ....................................................................................... 27 ARTICLE 37 COMPOSITION OF CONTRACTOR ................................................................. 27 ARTICLE 38 PATENT INDEMNITY ........................................................................................ 27 ARTICLE 39 BUSINESS ETHICS ........................................................................................... 27 ARTICLE 40 OFFICIALS NOT TO BENEFIT ......................................................................... 28 ARTICLE 41 DISSEMINATION OF CONTRACT INFORMATION ......................................... 29 ARTICLE 42 AGENT TO ACCEPT SERVICE ........................................................................ 29 ARTICLE 43 PERFORMANCE AND PAYMENT BONDS ...................................................... 29 ARTICLE 44 ADDITIONAL BOND SECURITY ....................................................................... 29 ARTICLE 45 CONTRACTOR’S INSURANCE ........................................................................ 30 ARTICLE 46 INDEMNIFICATION ........................................................................................... 33 ARTICLE 47 WAGE RATES ................................................................................................... 34 ARTICLE 48 CLEAN AIR AND WATER ................................................................................. 34 ARTICLE 49 AVAILABILITY OF RECORDS AND INSPECTIONS ........................................ 35 ARTICLE 50 ADMINISTRATIVE CONTROL OF CORRESPONDENCE ............................... 35 ARTICLE 51 CONTRACT ORDER OF PRECEDENCE ......................................................... 35 ARTICLE 52 NOTICES ........................................................................................................... 36 ARTICLE 53 SEVERABILITY ................................................................................................. 36 ARTICLE 54 WAIVER ............................................................................................................. 37 PAGE 2

TABLE OF CONTENTS (continued)

PAGE ARTICLE 55 MISCELLANEOUS ............................................................................................ 37 ARTICLE 56 MERGER ........................................................................................................... 39 ARTICLE 57 INTERPRETATION, JURISDICTION AND VENUE .......................................... 40 ARTICLE 58 ATTACHMENTS ................................................................................................ 40 ARTICLE 59 ENGINEERING AND ARCHITECTURAL SERVICES ...................................... 40 ARTICLE 60 ATTORNEY FEES ............................................................................................. 40 ARTICLE 61 NO ASSIGNMENT ............................................................................................. 40 ARTICLE 62 MEDIATION ....................................................................................................... 40 ARTICLE 63 AUDIT ................................................................................................................ 40 ARTICLE 64 RELATIONSHIP OF PARTIES .......................................................................... 41 ARTICLE 65 NO WAIVER OF IMMUNITY.............................................................................. 41 ATTACHMENT A ADJUSTMENT FACTORS/PRICING…..…………………….…………………….43 ATTACHMENT B PROCESS FOR CREATION OF JOB ORDER…………….……………………..44 ATTACHMENT C HISD GENERAL REQUIREMENTS OF THE WORK…..….…………………….49 ATTACHMENT D WARRANTY REQUEST FORM…………………………………………………….53 ATTACHMENT E PREVAILING WAGE RATES ............................................................................ 54 ATTACHMENT F JOB ORDER FORM .......................................................................................... 56

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STATE OF TEXAS COUNTY OF HARRIS

MASTER JOC AGREEMENT

BY AND BETWEEN

THE HOUSTON INDEPENDENT SCHOOL DISTRICT a political subdivision of the State of Texas

AND

_______________________________________________

FOR

JOB ORDER CONTRACTING (JOC) SERVICES

In consideration of the mutual promises and covenants hereinafter contained in this Master JOC Agreement (hereinafter “Contract”), the Houston Independent School District of Harris County, Texas, a political subdivision of the State of Texas, hereinafter called and referred to as “HISD” or “Owner”, and ________________________________________ hereinafter called and referred to as the “Contractor”, have agreed, and by these presents do agree, as follows:

ARTICLE 1

DEFINITIONS

A. The “Effective Date” means the later of the two dates on which this Contract is signed by Contractor and HISD, as indicated by their signatures below.

B. The term “HISD General Manager” means the HISD Senior Project Executive and the term “his duly authorized representative” means any person specifically authorized to act for the HISD General Manager by managing this Contract and any modification thereto. The term “HISD General Manager” as used herein includes his “duly authorized representative” unless the text specifies otherwise.

C. The term “HISD Issuing Authority” as used herein means the HISD Project Manager who has been designated in writing by the General Manager as responsible for administration of this Contract.

D. The term “HISD Project Manager” or “Project Manager”, means the technical representative, either employed or contracted, including Construction Managers providing services to HISD, who has been designated by the HISD Senior Project Executive, in writing, with the responsibility for assessing the Contractor’s technical performance and progress; inspecting and periodically reporting on such performance and progress during the stated period of performance, and finally certifying as to the acceptance of this Contract Work in its entirety or any portion thereof, as required by these Contract Documents.

E. The term ”Subcontract” as used herein means any agreement between Contractor and a Subcontractor (other than one involving an employer/employee relationship) entered into by the Contractor calling for equipment, supplies or services required for Contract performance, including any modifications thereto.

F. Job Order Contract(ing) is a method of procuring and contracting for the maintenance, minor construction, repair alteration or renovation of a building where the work is of a recurring nature and the quantities and delivery times are indefinite.

G. The Contractor has proposed three Adjustment Factors to be applied to the Unit Prices. One Adjustment Factor for performing work during Normal Working Hours; a second Adjustment Factor for performing work during Other Than Normal Working Hours; and the Non Pre-Priced Adjustment Factor. These Adjustment Factors shall apply to each respective applicable Pre-priced Task in the Construction Task Catalog®.

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H. The term “Request for Job Order Proposal” is a description of the individual scope of Work requested to be completed

by HISD. I. The term “Job Order” as used herein means the HISD Job Order issued for each individual Job Order Request for

Proposal under this Contract setting out the “Work.” A Job Order will reference the Detailed Scope of Work and set forth the Job Order Completion Time, and the Job Order Price. The Job Order Price shall be a lump sum, fixed price for the completion of the Detailed Scope of Work. A separate Job Order will be executed for each Project. Extra work, credits, and deletions will be contained in a Supplemental Job Order. A Job Order must be signed by authorized representatives for both HISD and Contractor in order to be binding on HISD, in the form required in Attachment “H”.

J. The term “Architect/Engineer” shall be the HISD supervising architect(s) and/or engineer(s), if any, designated in the

Job Order or other writing issued by HISD under this Contract, as applicable.

K. The term “Adjustment Factor”, or “Coefficient”, means the Contractor’s competitively bid adjustment to be applied to the Unit Prices listed in the Construction Task Catalog® and to Non Pre-Priced tasks.

L. The term “Construction Task Catalog®” means a comprehensive listing of construction related tasks together with a specific unit of measure and a published Unit Price.

M. The term “Detailed Scope of Work” means a document setting forth the work the Contractor is obligated to complete for a particular Job Order.

N. The term “Job Order Completion Time” means the time within which the Contractor must complete the Detailed Scope of Work.

O. The term “Job Order Price” means the value of the approved Job Order Price Proposal and the amount the Contractor will be paid for completing a Job Order.

P. The term “Job Order Price Proposal” means a price proposal prepared by the Contractor that includes the Pre-priced Tasks, Non Pre-priced Tasks, quantities and appropriate Adjustment Factors required to complete the Detailed Scope of Work.

Q. The term “Non Pre-priced Task” means a task that is not set forth in the Construction Task Catalog®.

R. The term “Normal Working Hours”, or “Standard Hours”, means Monday through Friday 8:00 am to 5:00 pm except HISD holidays.

S. The term “Other than Normal Working Hours”, or “Non-Standard Hours”, means Monday through Friday 5:01 pm to 7:59 am and all day Saturday, Sunday and HISD holidays.

T. The term “Pre-priced Task” means a task described in, and for which a Unit Price is set forth in, the Construction Task Catalog®.

U. The term” Project” means the collective improvements to be constructed by the Contractor pursuant to a Job Order, or a series of related Job Orders.

V. The term “Supplemental Job Order” means a secondary Job Order developed after the initial Job Order has been issued for the purpose of changing, deleting, or adding work to the initial Detailed Scope of Work, or changing the Job Order Completion Time.

W. The term “Technical Specifications” means the written requirements for materials, equipment, systems, standards and workmanship for the Work, and performance of related services.

X. The term “Unit Price” means the price published in the Construction Task Catalog® for a specific construction or construction related work task. Unit Prices for new Pre-priced Tasks can be established during the course of the Contract and added to the Construction Task Catalogs®. Each Unit Price is comprised of labor, equipment, and

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material costs to accomplish that specific Pre-priced Task. The Owner selected The Gordian Group’s (Gordian) Job Order Contracting (JOC) Solution (Gordian JOC SolutionTM) for their JOC program. The Gordian JOC Solution includes Gordian’s proprietary eGordian® JOC Applications and Construction Task Catalog®, which shall be used by the Contractor to prepare and submit Job Order Proposals, subcontractor lists, and other requirements specified by the Owner.

Y. The term “Work” means all materials, labor and use of tools, equipment and services necessary by the Contractor and/or Subcontractor to complete the Job Order.

Z. If the Job Order Price Proposal is found to be complete and reasonable, a Job Order may be executed.

ARTICLE 2 WORK TO BE PERFORMED

Contractor shall, except as may be specified elsewhere in this Contract, furnish all necessary labor, materials, tools, supplies, equipment, permits, transportation, disposal of construction debris, supervision, management, and perform all operations necessary and required for construction Work (hereinafter called “the Work”) which will be defined and further described as to specific Project requirements in each Job Order. The Work shall be performed in accordance with the requirements set forth in each Job Order and as further specified in Attachment “C”, General Requirements of the Work. HISD makes no guarantee of the issuance of Job Orders in any amount hereunder and nothing herein shall be construed to require HISD to use Contractor as HISD’s exclusive Job Order Contractor under this Contract or on any Project. HISD in its sole discretion has the right to retain other Job Order Contractors, and Contractor is not promised or guaranteed any amount of Work, job orders, or Projects under this Contract.

ARTICLE 3 JOB ORDERS

A. Performance of the Work contemplated in this Contract shall be undertaken only upon the execution of written Job Orders. Performance shall be subject to all terms and conditions of the Contract Documents. Job Orders shall be in in the form set forth in Attachment “F.”

B. Unless otherwise stipulated in writing by HISD, Job Orders executed prior to and in effect at the time of the expiration the Contract Term shall continue to be in effect and performed by the Contractor until such time as all requirements have been met and a written acceptance of the Work performed has been made by HISD.

C. There shall be no minimum dollar amount for any Job Order unless otherwise agreed to by HISD and Contractor.

D. The Job Order, when executed, constitutes a firm fixed price lump sum contract for the Work specified in the Job Order.

ARTICLE 4

KEY STAFF MEMBERS

Contractor’s key staff members identified in each Job Order are considered essential to the performance of the Job Order Contracting services. The background and experience of the Project Manager assigned to the Project by Contractor, if applicable, must be acceptable to HISD. Subject to HISD approval, this list may be amended from time to time during the course of this Contract to either add or delete personnel, as appropriate. Prior to any such changes, the Contractor shall notify HISD reasonably in advance and shall submit justification (including proposed substitutions) in sufficient detail to permit HISD to evaluate the impact that such changes will have upon the services being performed hereunder. Any substitutes proposed for key staff members will have similar credentials and/or experience and no diversions shall be made by the Contractor without the consent of HISD.

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ARTICLE 5 DETAILED SCOPE OF WORK AND SPECIFICATIONS AND DRAWINGS

A. The Contractor shall keep, on each Work site, a copy of the drawings and specifications and shall at all times give the HISD Issuing Authority access thereto. Anything contained in the original drawings and specifications shall be of like effect as if shown or contained in each copy. In the event of any discrepancy between drawings and specifications, the specifications shall govern. In the event of any discrepancy either in the figures, in the drawings, or in the specifications, the matter shall be promptly submitted to the HISD Issuing Authority who shall promptly make a determination in writing. Any adjustment by the Contractor without such a determination shall be at his own risk and expense. The HISD Issuing Authority shall furnish from time to time such detail drawings and other information as considered necessary, unless otherwise provided.

B. Wherever in the specifications or upon the drawings the words “directed”, “required”, “ordered”, “designated”, “prescribed”, or words of like import are used, it shall be understood that the “direction”, “requirement”, “order”, “designation”, or “prescription”, of the HISD Issuing Authority is intended. Similarly, the words “approved”, “acceptable”, “satisfactory”, or words of like import shall mean “approved by”, or “acceptable to”, or “satisfactory to” the HISD Issuing Authority and/or the Architect/Engineer, unless otherwise expressly stated.

C. Where “as shown”, “as indicated”, “as detailed”, or words of similar import are used, it shall be understood that the reference is made to the drawings which accompany each Job Order issued under this Contract unless stated otherwise. The word “provided” as used herein shall be understood to mean “provide complete in place”, that is, “furnished and installed”.

D. “Shop drawings” are drawings submitted to the HISD Issuing Authority by the Contractor, pursuant to this Contract, showing in detail:

1. The proposed fabrication and assembly of all constructing and structural elements;

2. The installation (i.e., form, fit, and attachment details) of materials or equipment; and,

3. The construction and detailing of elements of the Work.

Shop drawings include drawings, diagrams, layouts, schematics, descriptive literature, illustrations, schedules, performance and test data, and similar materials furnished by the Contractor to explain in detail specific portions of the Work required by this Contract. HISD may duplicate, use, and disclose in any manner, and for any purpose, shop drawings delivered under this Contract.

E. The Contractor shall coordinate all shop drawings, and review such for accuracy, completeness, and compliance with Contract requirements and shall indicate his approval thereon as evidence of such coordination and review. Shop drawings submitted to the HISD Issuing Authority without evidence of the Contractor’s approval may be returned for resubmission. The HISD Issuing Authority will indicate his approval or disapproval of the shop drawings and if not approved as submitted shall indicate HISD’s reasons therefore. No Work shall be done before such approval is received by the Contractor. Approval by the HISD Issuing Authority shall not relieve the Contractor from responsibility for any errors or omissions in such drawings, nor from responsibility for complying with the requirements of this Contract, except with respect to variations described and approved in accordance with Paragraph F below.

F. If shop drawings show variations from this Contract requirement, the Contractor shall describe such variations in writing, separate from the drawings, at the time of submission. If the HISD Issuing Authority approves any such variation, the HISD Issuing Authority shall issue an appropriate contract modification, provided that, if the variation is minor and does not involve a change in price or in time of performance, a formal written modification need not be issued.

G. The Contractor shall submit to the HISD Issuing Authority for approval, an appropriate number of copies as directed by the Job Order (unless otherwise indicated herein) of all shop drawings as called for under the various headings of these specifications. Sets of all shop drawings will be retained by the HISD Issuing Authority and one set will be returned to the Contractor.

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H. Omissions from the drawings or specifications or the misdescription of details of Work which are manifestly necessary to carry out the intent of the drawings and specifications, or which are customarily performed, shall not relieve the Contractor from performing such omitted or misdescribed details of the Work but they shall be performed as if fully and correctly set forth and described in the drawings and specifications.

I. The Contractor shall check all drawings furnished him immediately upon their receipt and shall promptly notify the HISD Issuing Authority of any discrepancies. Figures marked on drawings shall, in general, be followed in preference to scale measurements. Large scale drawings shall, in general, govern small scale drawings. The Contractor shall compare all drawings and verify the figures before laying out the Work, and Contractor will be responsible for any errors which might have otherwise been avoided.

J. This Article shall be included in all subcontracts at any tier.

ARTICLE 6 USE OF SPECIFICATIONS, DRAWINGS, AND NOTES

All drawings (to include as-built drawings), note books, technical and scientific data provided to the Contractor or developed by the Contractor pursuant to this Contract and all photographs, negatives, reports, findings, recommendations, data and memoranda of every description relating thereto, as well as all copies of the foregoing relating to the Work or any part thereof, shall be the property of HISD and may be used by HISD for any use whatsoever without any claim by the Contractor for additional compensation. The Contractor shall not use any documents listed above for any purpose outside the scope of this Contract without the prior written consent of HISD.

ARTICLE 7 HISD-FURNISHED DOCUMENTS

The following quantities of this Contract Documents will be provided to the Contractor at no additional expense after execution of this Contract:

Document Quantity

Contract and HISD Standard Specifications 1 copy

ARTICLE 8 PERMITS AND RESPONSIBILITIES

The Contractor shall, without additional expense to HISD, be responsible for processing of drawings for approval by the applicable jurisdictions, and for obtaining all necessary licenses and permits (except as reflected below), and for complying with any Federal, State and municipal laws, codes, and regulations applicable to the performance of the Work. The Contractor shall also be responsible for all damages to persons or property that occur as a result of the Contractor’s or Subcontractor’s fault or negligence, and shall take proper safety and health precautions to protect the Work, the Workers, the public, and the property of others. The Contractor shall also be responsible for all materials delivered and Work performed until completion and acceptance of the entire Work, except for any completed unit of Work which may have been accepted in writing under this Contract.

A. The Contractor shall pay sales, consumer, use and similar taxes for the Work provided by the Contractor which are legally enacted when bids are received or negotiations concluded, whether or not yet effective or merely scheduled to go into effect. HISD stipulates that it is an exempt organization as defined by the Limited Sales, Excise and Use Tax Act and as such is exempt from the payment of the sales tax on materials and supplies used in the performance of this Contract. The Contractor shall issue exemption certificates to its suppliers and Subcontractors in lieu of said sales tax for all such materials and supplies, and said exemption certificates must comply with current rulings of the Texas State Comptroller.

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B. Unless otherwise provided in this Contract, the Contractor shall secure and pay for all permits and governmental fees, licenses and inspections necessary for proper execution and completion of the Work which are customarily secured after execution of this Contract and which are legally required when bids are received or negotiations concluded. Notwithstanding the above, costs for building permits will be paid by HISD at actual cost.

C. The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations and lawful orders of public authorities applicable to performance of the Work.

D. It is not the Contractor’s responsibility to ascertain that any construction documents prepared by HISD’s Architect/Engineer are in accordance with applicable laws, statutes, ordinances, building codes, and rules and regulations. However, if the Contractor observes that portions of the construction documents are at variance therewith, the Contractor shall promptly notify the Architect/Engineer and HISD Project Manager in writing, and necessary changes shall be accomplished by appropriate modification.

E. If the Contractor performs Work knowing or which it should have reasonably known to be contrary to laws, statutes, ordinances, building codes, and rules and regulations without such notice to the Architect/Engineer and HISD Project Manager, the Contractor shall assume responsibility for such Work and shall bear all costs attributable to correction.

ARTICLE 9 MATERIAL AND WORKMANSHIP

A. All equipment, material, and articles incorporated in the Work covered by this Contract shall be new and of the most suitable grade for the purpose intended, unless otherwise specifically provided in this Contract. References in the specifications to equipment, material, article, or patented process by trade name, make, or catalog number, shall be regarded as establishing a standard of quality and shall not be construed as limiting competition. The Contractor may, with HISD’s written approval, use any equipment, material, article, or process that, in the judgment of the HISD General Manager, is equal to that named in the specifications, unless otherwise specifically provided in this Contract.

B. The Contractor shall obtain the HISD Issuing Authority’s or Architect/Engineer’s approval of the machinery and other equipment to be incorporated into the Work. When requesting approval, the Contractor shall furnish to the HISD Issuing Authority or Architect/Engineer the name of the manufacturer, the model number, and other information concerning the performance, capacity, nature, and rating of the machinery and mechanical and other equipment. When required by this Contract, the HISD Issuing Authority, or by the Architect/Engineer, the Contractor shall also obtain the Architect/Engineer’s approval of the material or articles which the Contractor contemplates incorporating into the Work. When requesting approval, the Contractor shall provide full information concerning the material or articles. Machinery, equipment, material and articles that do not have the required approval shall be installed or used at the risk of subsequent rejection.

C. All Work under this Contract shall be performed in a skillful and workmanlike manner.

ARTICLE 10

TESTING OF MATERIALS

A. The Contractor shall be responsible for required testing of materials prior to delivery at the site of the Work, including the design of concrete mixes. The Contractor will maintain a testing log which reflects the status of all testing. HISD will retain an independent testing laboratory to perform site testing of materials when deemed appropriate by HISD.

B. Any cost to the Contractor for the testing of newly installed equipment and materials necessary to ensure proper function shall be considered to be included in the Constrution Task Catalog prices.

C. Material and equipment shall not be finally accepted until approved by HISD or its designated agent. No Project will be deemed to be complete until final approval has been obtained from HISD or its designated agent.

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ARTICLE 11 LAYOUT OF WORK

The Contractor shall lay out his Work in accordance with the Contract plans and specifications and shall be responsible for all measurements in connection with the layout of the Work. The Contractor shall furnish, at its own expense, unless otherwise included in the Job Order, all stakes, templates, platforms, equipment, tools, materials, and labor required to lay out any part of the Work. The Contractor shall also be responsible for maintaining and preserving all control points established by the HISD Issuing Authority or Architect/Engineer. If such control points are destroyed or removed by the Contractor before their removal is authorized, the HISD Issuing Authority and/or Architect/Engineer may have them replaced and deduct the expense of the replacement from any amounts due or to become due to the Contractor. . In the alternative, HISD may make demand on the Contractor for immediate reimbursement, in which case, Contractor shall pay HISD within 3 business days of the demand for payment.

ARTICLE 12 SITE INVESTIGATION AND CONDITIONS AFFECTING THE WORK

A. The Contractor shall take all steps reasonably necessary to ascertain the nature and location of the Work, and to investigate and satisfy himself as to the general and local conditions which can affect the Work or its cost including, but not limited to:

1. Conditions bearing upon transportation, disposal, handling, and storage of materials; 2. The availability of labor, water, electric power, and roads;

3. Historical weather patterns, river stages, tides or similar physical conditions at the site; 4. The conformation and conditions of the ground; and 5. The character of equipment and facilities needed preliminary to and during Work performance.

B. No additional increase in this Contract amount or the amount of any Job Order will be provided when existing or known conditions require a certain amount of Work to comply with the intent of the Job Order.

C. The Contractor has the obligation and responsibility to satisfy himself as to the character, quality, and quantity of surface and subsurface materials or obstacles to be encountered insofar as this information is reasonably ascertainable from an inspection of each site, including all exploratory Work done by HISD, as well as from the drawings and specifications made a part of this Contract and/or applicable Job Order.

ARTICLE 13 DIFFERING SITE CONDITIONS

A. The Contractor shall promptly, and before the conditions are disturbed, give a written notice to the HISD Issuing Authority of:

1. Subsurface or latent physical conditions at the site which differ materially from those indicated in this Contract, and all other Contract Documents, and

2. Unknown physical conditions at the site, of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inherent in Work of the character provided for in this Contract.

B. The HISD Issuing Authority shall investigate the site conditions promptly after receiving the notice. If the conditions do materially so differ and cause an increase or decrease in the Contractor’s cost of, or the time required for performing any part of the Work under this Contract or applicable Job Order, whether or not changed as a result of the conditions, an equitable adjustment may be made by HISD and the applicable Job Order will be modified in writing accordingly.

C. No request by the Contractor for an equitable adjustment to this Contract and/or any Job Order under this Article shall be allowed, unless the Contractor has given the written notice required.

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D. No request by the Contractor for an equitable adjustment to this Contract and/or any Job Order for differing site conditions shall be allowed if made after final payment under this Contract.

ARTICLE 14

CONTRACT TERM

The term of this Contract shall commence on the Effective Date and shall continue for a Base Term of two (2) years from the Effective Date, unless revised in accordance with the terms and conditions of this Contract, or unless terminated by HISD in accordance with the termination provisions herein.

ARTICLE 15 OPTION TO EXTEND THE TERM OF THIS CONTRACT

Notwithstanding any other provision of this Contract, HISD has the option to extend this Contract performance period of this Contract for up to three (3) additional one (1) year Option Terms, provided that HISD gives written notice of such renewal to the Contractor prior to the expiration of the current Contract Term. The then current Contract provisions, including warranty and Adjustment Factors, shall apply to any Option Term. Continuation of the Job Order Contract for future renewal periods is at HISD’s sole discretion.

ARTICLE 16 COMPENSATION

A. As full consideration for the satisfactory performance by the Contractor of a Job Order, HISD shall pay to the Contractor the amounts specified in the individual Job Order, based on the Adjustment Factors set forth in Attachment A.

B. FEDERAL GRANT FUNDING AND HOUSTON INDEPENDENT SCHOOL DISTRICT'S BOARD POLICY

OBLIGATIONS

To the extent that HISD's obligation hereunder for payment of compensation is limited to and expressly subject to receipt of any funds from TEA under the provision of the Elementary and Secondary Education Act of 1965 as amended by Public Law 100-297, ESEA Title I-Part A and that such funds are specifically designated for this program, Contractor agrees to comply with all of the following requirements. In the event such funds are not received by HISD, or only partial funding is received from TEA, HISD may terminate this contract and not be liable for the remaining balance of the contract to the extent that the work has not been performed.

In the event HISD is ever required to refund any funds received from TEA specifically designated for this program, based upon Contractor’s failure to adhere to the requirements herein, then it is understood and agreed that Contractor shall be liable for and shall refund such amounts received by them to HISD within fifteen (15) days of receipt of written notice from HISD. Contractor agrees to comply with all rules, regulations, ordinances, statutes, and other laws, whether local, state or federal, including, but not limited to, all audit and other requirements of the Single Audit Act of 1984 and the Education Department General Administrative Regulations (“EDGAR”). To the extent that Federal Funds are utilized for payment under this contract, Contractor shall complete the EDGAR Contractor Certifications which are available from HISD which certifications are incorporated by reference herein, and shall ensure that such Contractor Certifications are promptly updated as necessary during the term of this Contract. Noncompliance or misrepresentation regarding the Contractor Certifications may, in HISD’s sole discretion, be grounds for immediate termination of this Contract. In the event an audit occurs and any expenditures relating to this Contract are disallowed, based upon Contractor’s failure to adhere to the requirements herein or any other reason, Contractor agrees to reimburse HISD immediately for the full amount of such disallowed expenditures.

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Contractor shall provide all services and perform all functions in accordance with the U.S. Office of Management and Budget (OMB) Circular Nos. A-133, A-110, and any other applicable OMB circulars, and in accordance with HISD’s Procedures which HISD shall provide to Contractor, regarding regulatory and financial matters so that the Grant can be carried out in accordance with the requisite federal and state requirements.

ARTICLE 17

INVOICING AND PAYMENTS

A. For any Job Order less than $10,000 for which the completion date is scheduled for less than one month (30 calendar days) from issuance of the Job Order, HISD shall make only one payment upon final completion and approval of the Work by HISD. HISD shall make progress payments monthly as the Work proceeds on all other Job Orders, or at more frequent intervals as may be determined by the HISD Issuing Authority, on estimates of construction progress approved by the HISD General Manager and the HISD Issuing Authority. The Contractor shall furnish a breakdown of the total Job Order price showing the amount included therein for each principal category of the Work, in such detail as requested, to provide a basis for determining progress payments. In the preparation of estimates the HISD Issuing Authority may authorize progress payments for material delivered on the site and preparatory Work done to be taken into consideration if:

1. Consideration is specifically authorized by this Contract:

2. The Contractor furnishes evidence satisfactory to HISD that he has acquired title to such material and that the material will be used to perform this Contract; and.

3. The Contractor furnishes evidence satisfactory to HISD that title to such material has passed to him.

4. The Contractor does not remove the materials from the site once paid for by HISD.

B. In making progress payments, there shall be retained five percent (5%) of the estimated amount until final completion and acceptance of the Job Order by HISD. When the Work is substantially complete, the HISD Issuing Authority shall retain an amount that the HISD Issuing Authority considers adequate protection of HISD and may release to the Contractor all or a portion of any excess amount.

C. All material and Work covered by progress payments made shall, at the time of payment, become the sole property of HISD, but this provision shall not be construed as:

1. Relieving the Contractor from the sole responsibility for loss of or damage to all such material and Work upon which payments have been made or the restoration of any damaged Work; or

2. Waiving the right of HISD to require the fulfillment of all of the terms of this Contract.

D. HISD shall pay the retained amount due the Contractor under this Contract after:

1. Completion and acceptance of all the Work;

2. Presentation of a properly executed invoice; and

3. Presentation of release of all claims against HISD arising by virtue of this Contract on claims. A release may also be required of the assignee if the Contractor’s claim to amounts payable under this Contract has been assigned. Prior to final payment, the Contractor shall submit in duplicate to the HISD Issuing Authority and/or the Architect/Engineer, if applicable, the following completed forms, as applicable:

a. Contractor’s Affidavit of Payment of Debts and Claims, AIA Document G706. b. Contractor’s Affidavit of Release of Liens, AIA Document G706A. c. Consent of Surety to Final Payment, AIA Document G707.

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d. Subcontractor's Lien Releases - notarized e. Contractor’s (and Subcontractor or supplier) notarized affidavit stating that no asbestos building

materials were used. f. Maintenance and instruction manuals, if applicable. Three sets of each bound in a 3” ring binder. g. Record drawings and reproducible mylar sepias, if applicable, in the format requested by HISD. h. Final list of Subcontractors (AIA Document G805).

E. The Contractor shall submit invoices, in duplicate, to the following address:

Houston ISD Accounts Payable Department 4400 W. 18th Street Houston, TX 77092

(HISD may change the name and address of any such designee at any time upon notice to Contractor.)

F. Notwithstanding anything in this Contract to the contrary, all payments to the Contractor shall be made in accordance with Chapter 2251 of the Texas Government Code. The Contractor shall comply with the requirements of Chapter 2251 of the Texas Government Code regarding payments to Subcontractors. Contractor may not withhold retainage from a subcontractor in a greater proportion than what HISD is withholding from Contractor, unless specifically authorized by HISD in writing.

G. Separate invoices are required for each payment of each Job Order, and each invoice shall contain the Job Order Number.

H. HISD is exempt from payment of any and all sales tax. A certificate of exemption and exemption number will be furnished to the Contractor. Contractor’s invoices should not contain assessment of any of these taxes.

I. Payments shall be considered made when HISD deposits the Contractor’s payment in the mail. Undisputed payments will be made within thirty (30) calendar days provided Contractor is not in default and that the requirements of all payment provisions are met.

ARTICLE 18 CONSTRUCTION SCHEDULE

A. For each Job Order request, within seven (7) days of receipt of Job Order Request, unless extended by the HISD Project Manager, the Contractor shall prepare and submit to the HISD General Manager for approval three (3) copies of a practicable schedule showing the order in which the Contractor proposes to perform the Work, and the dates on which the Contractor contemplates starting and completing the several salient features of the Work (including acquiring materials, plant, and equipment), as well as specifically indicating any work that must be performed by HISD or others to enable Contractor to meet its schedule, along with a Job Order Proposal. The schedule may be a formal CPM computerized schedule or a progress chart in a bar chart format of suitable scale to indicate appropriately the percentage of Work scheduled for completion by any given date during the period. In either case, the basic information should be the same and the schedule chart must contain as a minimum:

1. A list of the different types of Work activities or Work elements. 2. Show the logical dependencies (ties) to indicate what Work must be accomplished before other Work can

begin. 3. Show when the Contractor proposes to start and complete each Work activity or Work element.

4. Calculate the “weighting” or relative worth each Work activity or Work element is of the total Project either as a percent or dollar amount.

If the Contractor fails to submit a schedule within the time prescribed, the HISD Issuing Authority shall withhold approval of a Job Order until the Contractor submits the required schedule. Upon approval by HISD, the completion date in the required schedule shall become the “Completion Date” for the particular Job Order, and shall be the date that all Work under the Job Order is to be complete.

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B. The Contractor shall submit a progress report weekly, or as otherwise directed by the HISD Project Manager, and shall deliver three (3) copies of the annotated schedule to the HISD Project Manager. If, in the opinion of the HISD Project Manager, the Contractor falls behind the approved schedule, the Contractor shall take steps necessary to improve its progress, including those that may be required by the HISD Project Manager, without additional cost to HISD. In this circumstance, the HISD Project Manager may require the Contractor to increase the number of shifts, overtime operations, days of Work, and/or the amount of construction plant, and to submit for approval any supplementary schedule or schedules in chart form as the HISD Project Manager deems necessary to demonstrate how the approved rate of progress will be regained.

C. Emergency Work: Contractor will give top priority to any emergency Work HISD may have and will allocate all resources necessary to accomplish such Work in accordance with HISD’s schedule requirements. HISD shall have the right to require that some of the Work be completed after normal hours.

D. Failure of the Contractor to comply with the requirements of this Contract under this clause shall be grounds for a determination by the HISD Project Manager that the Contractor is not prosecuting the Work with sufficient diligence to ensure completion within the time specified in the Job Order, or by the Completion Date. Upon making this determination, the HISD Project Manager may terminate the Contractor’s right to proceed with the Work, or any separable part of it, in accordance with the provisions of Article 32. The parties hereto agree that time is of the essence of this Contract and of each Job Order issued pursuant to this Contract, and that the pecuniary damages which would be suffered by HISD, if the Contractor does not complete all Work called for in any Job Order by the Completion Date, are in their very nature difficult of ascertainment. It is therefore expressly agreed as a part of the consideration inducing HISD to execute this Contract that Contractor shall owe to HISD, and HISD may deduct from the final payment made to the Contractor for any Job Order a sum equal to the amount stated in the Job Order for each additional calendar day beyond the Completion Date which the Contractor shall require for substantial completion of the Work included in any Job Order issued under this Contract. It is expressly understood that the said sum per day is agreed upon as a fair estimate of the pecuniary damages which will be sustained by HISD in the event that the Work is not completed within the agreed time, or within the legally extended time, if any, otherwise provided for herein. Said sum shall be considered as liquidated damages only and in no sense shall be considered a penalty, said damage being caused by additional compensation to personnel, for loss of interest on money, administrative costs, loss of public use, and other miscellaneous increased costs, all of which are difficult of exact ascertainment.

ARTICLE 19 SUPERVISION BY CONTRACTOR

At all times during performance of a Job Order and until the Work is completed and accepted, the Contractor shall directly supervise the Work of this Contract or assign and have on the Work site, a competent superintendent who is satisfactory to the HISD General Manager and has authority to act for the Contractor. All Projects will have full time contractor supervision by a competent superintendent at all times Work is in progress.

ARTICLE 20 SUBCONTRACTORS

A. A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion of the Work on the Job Order. Contractor shall furnish, on a monthly basis, a list of all of its Subcontractors who are proposed to provide services under this Contract. HISD will review that list and indicate any firms found to be objectionable. The Contractor shall not contract with any party to whom HISD has made an objection. A copy of all subcontracts shall be available at the Contractor’s office for review by HISD.

B. The Contractor shall not, without the written consent of HISD, either replace a Subcontractor previously approved, or permit such subcontract to be assigned or transferred, or allow that portion of the Work to be performed by anyone other than the approved Subcontractor without the prior written consent of HISD; except that the Contractor may perform a previously subcontracted portion of the Work himself with qualified personnel upon written notice to HISD.

C. Nothing contained in this Contract shall be construed as creating any contractual relationship between any Subcontractor and HISD. The Contractor shall be responsible to HISD for acts and omissions of his own employees, and of Subcontractors and their employees. He shall also be responsible for the coordination of the Work of the trades and Subcontractors, and material deliveries. The Contractor shall, without additional expense to HISD, employ

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specialty Subcontractors where required. Neither HISD nor its representatives will be required to undertake to settle any differences between the Contractor and his Subcontractors, or between Subcontractors. The Contractor shall indemnify and hold HISD harmless from any and all Subcontractor claims, losses or damages, including, but not limited to, court costs and attorneys’ fees, arising out of or related to this Contract.

D. The Contractor shall insert in all first tier subcontracts a requirement that certification be provided to indicate that all lower tier Subcontractors and/or suppliers have been paid. The first tier Subcontractor shall submit a release of claims.

E. The Contractor shall not sublet the Work as a whole. The approval of Subcontractors in no way relieves the Contractor from full responsibility for performance and completion of the Work and its obligations under the Contract Documents.

ARTICLE 21 INSPECTION OF CONSTRUCTION

A. The Contractor shall maintain an adequate inspection system and perform such inspections as will ensure that the Work called for conforms to all contractual and Job Order requirements. The Contractor shall maintain complete inspection records and make them available to HISD upon three (3) days’ notice. All Work shall be conducted under the general direction of the HISD Issuing Authority or the Architect/Engineer and is subject to inspection and test at all places and at all reasonable times before acceptance to ensure strict compliance with the terms of this Contract. The Contractor shall use approved Daily Report and ReWork forms to record the results of his quality control and quality assurance inspections and to log items requiring ReWork and their status. These forms will be made available to HISD for review at any time.

B. HISD inspections and tests are for the sole benefit of HISD and do not:

1. Relieve the Contractor of responsibility for providing adequate quality control measures; 2. Relieve the Contractor of responsibility for damage to or loss of the material before acceptance;

3. Constitute or imply acceptance; or 4. Affect the continuing rights of HISD after acceptance of the complete Work under Paragraph H below.

C. The presence or absence of an inspector does not relieve the Contractor from any Contract requirement, nor is the inspector authorized to change any term or condition of the specification without the HISD Issuing Authority’s written authorization.

D. The Contractor shall promptly furnish, without additional charge, all facilities, labor, and material reasonably needed for performing such safe and convenient inspections and tests as may be required by the HISD Issuing Authority or Architect/Engineer. HISD may charge to the Contractor any additional cost of inspection or test when Work is not ready at the time specified by the Contractor for inspection or test, or when prior rejection makes reinspection or retest necessary. The HISD Issuing Authority or Architect/Engineer shall perform all inspections and tests in a manner that will not unnecessarily delay the Work. Special, full size, and performance tests shall be performed as described in the Job Order.

E. The Contractor shall promptly, without charge, replace or correct Work found by the HISD Issuing Authority and/or Architect/Engineer not to conform to Job Order requirements, unless in the public interest HISD consents to accept the Work with an appropriate adjustment in Contract price. The Contractor shall promptly segregate and remove rejected material from the premises.

F. If the Contractor does not promptly replace or correct rejected Work, HISD may:

1. By contract or otherwise, replace or correct the Work and charge the cost to the Contractor; and/or 2. Terminate for default the Contractor’s right to proceed.

G. If, before acceptance of the entire Work, the Architect/Engineer decides to examine already completed Work by removing it or tearing it out, the Contractor, on request, shall promptly furnish all necessary facilities, labor, and material. If the Work is found to be defective or non-conforming in any material respect due to the fault of the

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Contractor or its Subcontractors, the Contractor shall pay the expenses of the examination and of satisfactory reconstruction. However, if the Work is found to meet Contract requirements, the HISD Issuing Authority shall make an equitable adjustment for the additional services involved in the examination and reconstruction, including, if completion of the Work was thereby delayed, an extension of the period of performance time.

H. Unless otherwise specified in the Job Order, HISD shall make its best efforts to accept, as promptly as practicable after completion and inspection, all Work required by the Job Order or that portion of the Work the HISD Issuing Authority determines can be accepted separately.

ARTICLE 22 OPERATIONS AND STORAGE AREAS

A. The Contractor shall confine all operations (including storage of materials) to areas authorized or approved by the HISD Issuing Authority.

B. Temporary buildings (e.g., storage sheds, shops, offices) may be erected by the Contractor only with the prior written approval of the HISD Issuing Authority and shall be built with labor and materials furnished by the Contractor without expense to HISD. The temporary buildings shall remain the property of the Contractor and shall be removed by the Contractor at its expense upon the completion of the Work. With the written consent of the HISD Issuing Authority, the buildings and utilities may be abandoned and need not be removed. Asbest such written consent, Contractor shall reimburse HISD for any costs incurred by HISD to remove abandoned temporary buildings. Unless stated otherwise herein, any facilities or utilities required by Contractor shall be furnished by Contractor at Contractor’s expense.

C. The Contractor shall, under regulations prescribed by the HISD Issuing Authority, use only established roadways or temporary roadways constructed by the Contractor when and as authorized by the HISD Issuing Authority. The Contractor shall comply with all federal, state, and local laws and regulations when transporting materials. When it is necessary to cross curbs or sidewalks, the Contractor shall protect them from damage. The Contractor shall repair or pay for the repair of any damaged curbs, sidewalks or roads.

ARTICLE 23 PROTECTION OF EXISTING VEGETATION, STRUCTURES, UTILITIES, AND IMPROVEMENTS

A. The Contractor shall preserve and protect all structures, equipment, and vegetation (such as trees, shrubs, and grass) on or adjacent to the Work site, which are not to be removed and which do not unreasonably interfere with the Work required under the Job Order. The Contractor shall only remove trees when specifically authorized to do so in writing by the HISD Issuing Authority, and shall avoid damaging vegetation that will remain in place. If any limbs or branches of trees are broken during the performance of the Work by careless operation of equipment, or by workmen, the Contractor shall trim those limbs or branches with a clean cut and paint the cut with a tree pruning compound as directed by the HISD Issuing Authority.

B. The Contractor shall protect from damage all existing improvements and utilities (1) at or near the Work site and (2) on adjacent property of a third party, the locations of which are made known to or should be known by the Contractor. The Contractor shall repair any damage to those facilities, including those that are the property of a third party, resulting from Contractor’s failure to comply with the requirements of the Job Order or Contractor’s failure to exercise reasonable care in performing the Work. If the Contractor fails or refuses to repair the damage promptly, the HISD Issuing Authority may have the necessary Work performed and charge the cost to the Contractor.

ARTICLE 24

CLEANING UP AND REFUSE DISPOSAL

The Contractor shall, at all times, keep the Work area, including storage areas, free from accumulations of waste materials. Before completing the Work, the Contractor shall remove from the Work and premises any rubbish, tools, scaffolding, equipment, and materials that are not the property of HISD. Upon completing the Work, the Contractor shall leave the Work area in a clean and orderly condition satisfactory to the HISD Issuing Authority. Final cleanup of the premises shall be included in the Period of Performance of the Job Order. All costs for all clean up, construction refuse disposal, including

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containers and removal from the site, shall be the responsibility of the Contractor and are included in the Contractor’s coefficient, except for hazardous wastes not brought on site or generated by the Contractor or unless approved as a separate line item in the Job Order. If a dispute arises about who is responsible for site clean-up where multiple contractors may be on site, the HISD Issuing Authority shall allocate the cost among all parties responsible.

ARTICLE 25 WARRANTY OF CONSTRUCTION

A. In addition to any other warranties provided by law or in this Contract or Job Orders, the Contractor warrants that Work performed under Job Orders conforms to the Job Order requirements and is free of any defect in equipment, material or design furnished, or Workmanship performed by the Contractor or any of its Subcontractors or suppliers at any tier.

B. The warranties in this Article shall continue for a period of one (1) year from the date of final acceptance of the Work. All painting and roofing Work shall be warranted by the Contractor for two (2) years from the date of final acceptance of the Work.

C. The Contractor shall remedy at the Contractor’s expense any failure to conform, or any defect. In addition, the Contractor shall remedy at the Contractor’s expense any damage to HISD owned or controlled real or personal property, when that damage is the result of:

1. The Contractor’s failure to conform to Contract requirements; or 2. Any defect of equipment, material, Workmanship, or design furnished.

Unless a defect is caused by the Contractor or Subcontractor or supplier at any tier, the Contractor shall not be liable for the repair of any damage that results from any defect in HISD furnished material or design.

D. The Contractor shall restore any Work damaged in fulfilling the terms and conditions of this Article. The Contractor’s warranty with respect to Work repaired or replaced will run for one (1) year from the date of repair or replacement.

E. The HISD Issuing Authority shall notify the Contractor, in writing, within a reasonable time after the discovery of any failure, defect, or damage.

F. If the Contractor fails to remedy any failure, defect, or damage within a reasonable time after receipt of notice, HISD shall have the right to replace, repair, or otherwise remedy the failure, defect or damage at the Contractor’s expense.

G. With respect to all warranties, expressed or implied, from Subcontractors, manufacturers, or suppliers for Work performed and materials furnished for Job Orders issued under this Contract, the Contractor shall:

1. Obtain all warranties that would be given in normal commercial practice; 2. Require all warranties be executed in writing for the benefit of HISD; 3. Enforce all warranties for the benefit of HISD.

4. Deliver all warranty documents

H. In the event the Contractor’s warranty under Paragraph B of this Article has expired, HISD may bring suit at its expense to enforce a Subcontractor’s, manufacturers, or supplier’s warranty.

I. This warranty shall not limit HISD’s rights under Article 21 with respect to latent defects, gross mistakes, or fraud.

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ARTICLE 26 CHANGES

A. 1. Changes in the Work may be accomplished after execution of the Job Order and without invalidating the Job Order by Supplemental Job Order, Construction Change Directive or order for a minor change in the Work. The Job Order amount and/or completion date may be increased for changes in the Work if the provisions of Article 26 have been met. No change in the Job Order amount and/or completion date will be allowed for a change in the Work unless prior to performing the changed Work the Contractor has provided the HISD in writing with a proposal for any increase in price and/or change in completion date caused by the change in Work. A field directive or field order shall not be recognized as having any impact upon the Job Order amount or the completion date, and Contractor shall have no Claim therefore, unless it shall, prior to complying with the directive and in any event within ten (10) days of receiving the directive, submit a change proposal to HISD.

2. A Supplemental Job Order shall be based upon agreement among the Project Manager and the Contractor; a Construction Change Directive requires agreement by the General Manager, the Project Manager (if applicable) and the Architect/Engineer, and may or may not be agreed to by the Contractor; an order for a minor change in the Work may be issued by the Project Manager alone.

3. Changes in the Work shall be performed under applicable provisions of the Contract Documents, and the Contractor shall proceed promptly, unless otherwise provided in the Supplemental Job Order, Construction Change Directive or order for a minor change in the Work.

4. If unit prices are stated in the Job Order or subsequently agreed upon, and if quantities originally contemplated are so changed in a proposed Supplemental Job Order or Construction Change Directive that application of such unit prices to quantities of Work proposed will cause substantial inequity to the HISD or Contractor, the applicable unit prices may be equitably adjusted by HISD.

B. The Contractor, upon receipt of written notification by the Project Manager of a proposed item of change in the Work, shall prepare as soon as possible a Change Proposal in such form or forms as directed by the Project Manager.

1. Each separate Change Proposal shall be numbered consecutively and shall include materials costs, labor costs, fees, overhead and profit. The Proposal shall specify all costs related to the proposed Change in the Work, including any disruption or impact on performance.

2. The Subcontractor’s itemized accounting shall be included with the Change Proposal. 3. If Change Proposal is returned to the Contractor for additional information or if the scope of the proposed

change in the Work is modified by additions, deletions or other revisions, the Contractor shall revise the Change Proposal accordingly and resubmit the revised Change Proposal to the Project Manager.

4. A revised Change Proposal shall bear the original Change Proposal number suffixed by the letter “R” to designate a revision in the original Change Proposal. If additional revisions to a revised Change Proposal are necessary, each subsequent revision shall be identified by an appropriate numeral suffix immediately following the “R” suffix.

5. Upon written approval of a Change Proposal, the Project Manager or Architect/Engineer will prepare a Supplemental Job Order authorizing such change in the Work.

6. The Contractor shall request extensions of the completion date due to changes in the Work only at the time of submitting his Change Proposal. Contractor’s failure to do so shall represent a waiver of any right to request a time extension.

C. 1. A Supplemental Job Order is a written instrument prepared by the Project Manager and signed by HISD, Contractor, and Project Manager, stating their agreement upon all of the following:

a. A change in the Work; b. The amount of the adjustment in the Job Order amount, if any; and c. The extent of the adjustment in the completion date, if any.

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2. Methods used in determining adjustments to the Job Order amount shall be determined by HISD and may include those listed below:

a. Mutual acceptance of a lump sum based on the pricing set forth at Article 16 and Attachment “A,” properly itemized and supported by sufficient substantiating data to permit evaluation. Sufficient substantiating data shall include a proposal itemized for the various components of Work added or deleted, segregated by labor, material and equipment. Details to be submitted will include detailed line item estimates showing detailed material quality take-offs, material prices by item and of related labor hour pricing information and extension (by line item by drawings as applicable);

b. Unit prices stated in the Contract Documents or subsequently agreed upon and supported by sufficient substantiating data to permit evaluation;

c. Cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or percentage fee or the percentage fee established at Article 26, Subsection C.3.f.; or as provided in Article 26, Subsection C.3.f.

3. Construction Change Directives

a. A Construction Change Directive is a written order prepared by the Project Manager and signed by the HISD General Manager and the Project Manager, directing a change in the Work and stating a proposed basis for adjustment, if any, in the Job Order amount or completion date, or both. The HISD may by Construction Change Directive, without invalidating the Job Order, order changes in the Work within the general scope of the Job Order consisting of additions, deletions or other revisions, the Job Order amount and completion date being adjusted accordingly.

b. A Construction Change Directive shall be used in the absence of total agreement on the terms of a

Supplemental Job Order. c. The Construction Change Directive shall include a unilateral change in the Job Order amount and/or

completion date reflecting HISD’s view of the appropriate change in the Job Order amount and/or completion date for the change in the Work covered by the Construction Change Directive. Until agreement is reached by HISD and Contractor on these issues, the changes in Job Order amount and completion date set out in the Construction Change Directive shall be used for schedule of values, payment and scheduling purposes.

d. Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with the

change in the Work involved and advise the Project Manager of the Contractor’s agreement or disagreement with the method, if any, provided in the Construction Change Directive for determining the proposed adjustment in the Job Order amount or completion date.

e. A Construction Change Directive signed by the Contractor indicates the agreement of the Contractor

therewith, including adjustment in Job Order amount and completion date or the method for determining them. Such agreement shall be effective immediately and shall be recorded as a Supplemental Job Order.

f. In the absence of agreement between Project Manager and the Architect/Engineer on the proper

change to the Job Order amount or completion date because of a change in the Work, Contractor may treat the matter as a Claim under Article 28. In such event, the Contractor shall be entitled to recover only the amount by which its direct costs have been reasonably increased over the direct cost of performing the Work without the change in the Work, plus fifteen percent (15%) (5% on Subcontractor’s Work) of direct cost to cover supervision, field office and home office overhead, profit and all other costs. Direct cost shall be limited to the following:

(1) Reasonable cost of labor, including social security, old age and unemployment insurance,

fringe benefits required by agreement or custom, and Worker’s compensation insurance; (2) Reasonable cost of materials, supplies and equipment including cost of transportation, whether

incorporated or consumed; PAGE 19

(3) Reasonable rental cost of machinery and equipment, exclusive of hand tools, rented from third parties (not owned by the Contractor), at rates that are no greater than market rates in the locale of the Work at the time of the Work;

(4) Reasonable cost of Subcontractor for performing the change Work. The amount allowable for

Subcontractors shall be calculated using the same standards set out herein for direct Work by the Contractor.

Contractor and each Subcontractor involved shall furnish evidence of costs such as copies of original

invoices for materials, payroll vouchers for labor, etc., upon request by the Architect Engineer, HISD, or HISD Project Manager. Any increase in contract time shall be limited to the amount of time by which activities, critical to overall completion of the Project, are delayed by the change in the Work. If it is reasonably possible to perform the change in the Work concurrently with Work that is critical to overall completion, no time extension shall be granted by reason of a change in the Work.

g. Pending final determination of cost to HISD, amounts not in dispute may be included in Applications for

Payment. The amount of credit allowed by the Contractor to HISD for a deletion or change which results in a net decrease in the Job Order amount shall be actual net cost as confirmed by the Project Manager. When both additions and credits covering related Work or substitutions are involved in a change, the allowance for overhead and profit shall be figured on the basis of net increase, if any, with respect to that change.

4. Minor Changes in the Work

a. The Project Manager will have authority to order minor changes in the Work not involving adjustment in the Job Order amount or extension of the completion date and not inconsistent with the intent of the Job Order Proposal. Such changes shall be effected by written order and shall be binding on HISD and Contractor. The Contractor shall carry out such written orders promptly.

ARTICLE 27 PRICING ADJUSTMENTS

A. The Contractor, in connection with any proposal it makes for a Job Order modification or change, shall furnish a price breakdown itemized as required by the HISD Issuing Authority. Pricing for such modifications shall be based on quantities mutually agreed to by the Contractor and HISD and the prices contained in the designated unit price book and the applicable Adjustment Factors.

.

B. Justification shall be furnished for any proposed extension in the period of performance. The proposal, together with the price breakdown and period of performance extension justification, shall be furnished by the date specified by the HISD Issuing Authority.

ARTICLE 28

EXTRAS AND CLAIMS

Except as otherwise provided in this Contract, no payment for extra Work shall be made unless such extra Work and the price therefore have been authorized by advanced written order of HISD pursuant to Article 26. Claims for money other than the amount of each Job Order shall be determined as set forth below.

A. Definition.

Claim is any demand or assertion by the Contractor that it should be paid more money than the Job Order amount, as adjusted under Article 26, by the Project Manager because of action or inaction on the part of Project Manager,

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Architect/Engineer, or any party for whom HISD is responsible, or any party with whom HISD has separately contracted for other portions of the Project, including, but not limited to, any demand or assertion that Contractor’s performance has been delayed, interrupted or interfered with, that Contractor’s performance has been accelerated, constructively accelerated, or suspended, that Contractor’s performance has been wrongfully terminated, that the Contract Documents have been misinterpreted, that there has been a failure of payment, that Contractor has encountered concealed or unknown conditions, that Contractor has encountered hazardous materials, that there are problems with the Contract Documents, or the timing of Project Manager approvals or decisions, that actions of HISD have been intentionally wrongful or deceptive, that the amount of time or money granted in a Construction Change Directive is inadequate, that an item treated as a minor change in the Work should have been treated as a Supplemental Job Order, that a time extension grant was inadequate, or that Contractor is entitled to any other relief, on any legal theory, related to the Work and this Contract.

B. Within five (5) days of the first occurrence of any event that Contractor has any reason to believe might result in a Claim, or within five (5) days of Contractor’s discovery of the first occurrence of an event that Contractor has any reason to believe might result in a Claim if the first occurrence of the event was willfully hidden from the Contractor, the Contractor shall file a written document clearly captioned “Notice of Claim” with the HISD General Manager. The notice shall clearly set out the specific matter of complaint, and the impact or damages, which may occur or have occurred as a result thereof, to the extent the impact or damages can be assessed at the time of the notice. If the impact or damages cannot be assessed as of the date of the notice, the notice shall be amended at the earliest date this is reasonably possible.

C. Any Claim or portion of a Claim that has not been made the specific subject of a notice strictly in accordance with the requirements of this section shall be waived. It is imperative that the HISD General Manager have timely, specific notice of any subject, the impact of which HISD General Manager may be in a position to mitigate.

D. Claims Handling During Construction.

After receipt of a Notice of Claim, the HISD General Manager may elect to refer the matter to the Project Manager, Architect/Engineer or another party for review. Contractor will attend meetings called to review and discuss the Claims and mitigation of the problem, and shall furnish any reasonable factual backup for the Claim requested. The HISD General Manager may also elect to defer consideration of the Claim until the Work is completed, in which case the same review options shall be available to the HISD General Manager at the completion of the Work. At any stage, HISD is entitled but not obligated to refer a Claim to mediation under the Construction Industry Mediation Rules of the American Arbitration Association, and if this reference is made Contractor and the HISD General Manager will take part in the mediation process. The filing, mediation or rejection of a Claim does not entitle Contractor to stop performance of the Work. The Contractor shall proceed diligently with performance of this Contract.

E. Claims Handling Following Construction.

The acceptance of final payment shall constitute a waiver of Claims by the Contractor which have not previously been identified in a Notice of Claim and specifically reserved in the final Application for Payment.

F. If a Claim has not been resolved within six (6) months of the date of the final Application for Payment through Claim review procedures, mediation, or other Claim settlement negotiations, then Contractor at that time, but not before, shall be entitled to institute litigation on the Claim in a State Court of competent jurisdiction in Harris County, Texas, and in no other forum.

G. Claims for Concealed or Unknown Conditions.

Only if conditions are encountered at the site which are (a) subsurface or otherwise concealed physical conditions which differ materially from those indicated in this Contract Documents, (b) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in this Contract Documents or (c) in the case of renovation Work, any condition of the preexisting construction to be renovated which was hidden from view prior to demolition Work performed as a part of the renovation, that is materially different from any of the conditions that could reasonably have been expected to be present in preexisting construction of the age and type encountered on the Project, then Contractor shall be entitled to make a Claim if it can satisfy all of the requirements of Article 28.

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H. In calculating the amount of any Claim the following standards will apply:

1. No indirect or consequential damages will be allowed.

2. All damages must be directly and specifically shown to be caused by a proven wrong. No recovery shall be based on a comparison of planned expenditures to total actual expenditures, or on estimated losses or labor efficiency, or on a comparison of planned man-loading to actual man-loading, or any other analysis that is used to show damages indirectly.

3. Damages are limited to extra costs specifically shown to have been directly caused by a proven wrong.

4. The maximum daily limit on any recovery for delay shall be the amount estimated by the Contractor for job overhead costs divided by the total number of calendar days allowed in the original Job Order based on the completion date.

ARTICLE 29

SUSPENSION OF WORK

A. The HISD General Manager may order the Contractor, in writing, to suspend, delay, or interrupt all or any part of the Work for the period of time that the HISD General Manager determines appropriate for the convenience of HISD.

B. If the performance of all or any part of the Work is, for an unreasonable period of time, suspended, delayed, or interrupted by an act of the HISD General Manager in the administration of a Job Order, or by the HISD General Manager’s failure to act within the time specified in the Job Order (or within a reasonable time if not specified) then, at the sole option of HISD, an adjustment may be made for any increase in the cost of performance of the Job Order necessarily caused by the unreasonable suspension, delay, or interruption, and the Job Order may be modified in writing accordingly, However, no adjustment shall be made under this clause for any suspension, delay, or interruption to the extent that performance would have been so suspended, delayed, or interrupted by any other cause, including the fault or negligence of the Contractor, or for which an equitable adjustment is provided for or excluded under any other term or condition of this Contract or the Job Order.

C. A claim under this Article shall not be allowed for any costs incurred more than twenty (20) calendar days before the Contractor shall have notified the HISD Issuing Authority in writing of the act or failure to act involved (but this requirement shall not apply as to a claim resulting from a suspension order), and unless the claim, in an amount stated, is asserted in writing as soon as practicable after the termination of such suspension, delay, or interruption, but not later than 10 days prior to the date of final payment under the Job Order.

ARTICLE 30 DISPUTES

Any dispute concerning a question of fact arising under this Contract or a Job Order which is not disposed of by agreement will be decided by the HISD General Manager, who will reduce his decision to writing and mail or otherwise furnish a copy thereof to the Contractor. The decision of the HISD General Manager will be final unless, within thirty (30) calendar days from the date of receipt of such copy, the Contractor mails or otherwise furnishes to the HISD Issuing Authority a written appeal addressed to the HISD General Manager. The HISD Senior Project Executive will hear the Contractor’s appeal and make a final decision. In connection with any appeal proceeding under this Article, the Contractor will be afforded an opportunity to be heard and to offer evidence in support of his appeal. The decision of the HISD General Manager will be final and conclusive with respect to the Contractor’s administrative remedies under this Article. Pending final decision of a dispute hereunder, the Contractor shall proceed diligently with the performance of Work in accordance with the HISD General Manager’s decision. This Article does not preclude consideration of questions of law in connection with decisions provided for above. Nothing in this Contract, however, shall be construed as making final the decision of any administrative official, representative, or committee on a question of law.

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ARTICLE 31 TERMINATION FOR CONVENIENCE OF HISD

A. Notwithstanding anything in Article 32 or any other Article herein to the contrary, HISD may, at any time with two days notice to the Contractor, terminate this Contract, or a Job Order, or part of a Job Order, issued pursuant to this Contract for HISD’s convenience and without cause.

B. Upon receipt of written notice from the HISD Project Manager of termination pursuant to this Article, the Contractor shall:

1. Cease operations as directed by HISD in the notice; 2. Take actions necessary, or that HISD may direct, for the protection and preservation of the Work; and 3. Except for Work directed to be continued under a Job Order or to be performed prior to the effective date of

termination stated in the notice, terminate all existing subcontracts and Job Orders and enter into no further subcontracts and Job Orders.

C. In case of such termination for HISD’s convenience under this Article, the Contractor shall be entitled to receive payment for the Work executed, in accordance with the Contract documents, along with reasonable overhead and profit as determined by HISD on the Work executed. The Contractor shall not be paid on account of loss of anticipated profits or revenue for Work not executed, or other economic loss arising out of or resulting from such termination.

ARTICLE 32 DEFAULT

A. If the Contractor refuses or fails to prosecute the Work under a Job Order, or any separable part, with the diligence that will ensure its completion by the Completion Date, including any extension, or fails to complete the Work within this time, HISD may, by written notice to the Contractor, terminate the right to proceed with the Work under the Job Order (or separable part of the Work) that has been delayed. In this event, HISD may take over the Work and complete it by contract or otherwise and may take possession of and use any materials, appliances, and plant on the Work site necessary for completing the Work. The Contractor shall be liable for any damage to HISD resulting from the Contractor’s refusal or failure to complete the Work within the specified time, whether or not the Contractor’s right to proceed with the Work is terminated. This liability includes any increased costs incurred by HISD in completing the Work, but does not include indirect, consequential or special damages. If the unpaid balance of any Job Order subject to termination under this Article exceeds the costs of finishing the Work in the Job Order, including compensation for Architect’s services and expenses made necessary thereby, and other damages incurred by HISD and not expressly waived, such excess shall be paid to the Contractor. The amount to be paid the Contractor or HISD, as the case may be, shall be certified by the HISD Issuing Authority and/or the Architect/Engineer, if applicable, upon application, and this obligation for payment shall survive the termination of this Contract.

B. The Contractor’s right to proceed shall not be terminated nor the Contractor charged with damages under this Article or Article 18 of this Contract, if:

1. The delay in completing the Work arises from unforeseeable causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include:

a. acts of God or of the public enemy; b. acts of another Contractor in performance of a contract with HISD; c. fires; d. floods; e. epidemics; f. quarantine restrictions; g. strikes; h. freight embargoes; or

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i. unusually severe weather (The basis used to define normal weather will be data showing high and low temperatures, precipitation, and number of days of severe weather in the Harris County area for the previous ten (10) years, as compiled by the United States Department of Commerce Nation Weather Service.), and

2. The Contractor, within five (5) calendar days from the beginning of any such delay (unless extended by the HISD Issuing Authority), notifies the HISD Issuing Authority in writing of the causes of delay. The HISD Issuing Authority shall ascertain the facts and the extent of delay. If, in the judgment of the HISD Issuing Authority, the findings of fact warrant such action, the time for completing the Work shall be extended. The findings of the HISD Issuing Authority shall be final and conclusive on the parties, but subject to appeal under Article 30.

C. If, after termination of the Contractor’s right to proceed, it is determined that the Contractor was not in default, or that the delay was excusable, the rights and obligations of the parties will be the same as if the termination had been issued for the convenience of HISD.

D. If the unpaid balance of any Job Order subject to termination under this Article exceeds the costs of finishing the Work in the Job Order, including compensation for Architect’s services and expenses made necessary thereby, and other damages incurred by HISD and not expressly waived, such excess shall be paid to the Contractor.

E. The rights and remedies of HISD in this Article are in addition to any other rights and remedies provided by law or under this Contract.

ARTICLE 33

SAFETY/HAZARDOUS MATERIALS

A. The Contractor shall be responsible for compliance with all safety rules and regulations of the Federal Occupational Safety and Health Act and those of HISD and all applicable Federal, State and local laws, ordinances, and regulations during the performance of this Work.

B. Contractor shall furnish and enforce the use of individual protective equipment as needed to complete the Work, including hard hats, rain gear, protective foot wear, protective clothing and gloves, eye protection, ear protection, respirators, safety belts, safety harnesses, safety lifelines and lanyards, and high visibility reflective safety vests.

C. Contractor shall provide his employees safety training to include special training prior to Working with hazardous materials or operations.

D. Contractor shall provide, at the Contractor’s expense, warning signs, barricades, and verbal warnings as required.

E. Contractor shall inform its employees of emergency procedures to be adhered to in case of a fire, medical emergency, or any other life-threatening catastrophes.

F. The Contractor shall promptly notify the HISD Issuing Authority of any accident involving personnel or damage to material and equipment. Copies of the “First Report of Injury (E-1 form)” and accident investigation reports of accidents as required, shall be provided to the HISD Issuing Authority.

G. The Contractor shall hold weekly safety meetings for all foremen, craft supervisors and Workmen and maintain a written report of all such meetings. Copies of these written reports shall be made available to HISD when requested.

H. The Contractor shall perform daily job site inspections. A report of the Contractor’s findings and observations, as well as corrective measures taken where required, shall be prepared and made available to HISD when requested.

I. The Contractor shall maintain a set of OSHA articles at the job site as they apply to the Work being performed. Copies shall be provided to HISD when requested.

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J. The Contractor shall submit to HISD a copy of its standard safety policies and program procedures which establish the safety rules and regulations as they are to be applied to performance of the Work. These documents shall be submitted by the Contractor within 14 calendar days after award of this Contract.

K. The Contractor shall assign, during performance of the Work, a designated safety representative (in writing) to develop and monitor the Project safety program. The name, company address, and telephone number of the assigned individual shall be submitted to HISD by the Contractor along with their safety policies and program procedures.

L. The Contractor shall provide and maintain on the job site, at all times, a completely stocked first aid kit which contains all emergency medical supplies as currently recommended by the American Red Cross.

M. The Contractor shall make available for its employees and those of its Subcontractors, while they are performing Work on the job site, emergency medical treatment either at the job site or at a nearby medical facility.

N. HISD reserves the right to approve prior to commencing Work and monitor the Contractor’s safety policies and program procedures as applied during performance of the Work. Failure to comply with safety policies and program procedures, once approved by HISD shall be just cause for the complete termination of this Contract in accordance with Article 32.

O. The Contractor shall comply with all requirements of Texas Government Code Section 2166.303, Texas Health and Safety Code, Subchapter C, Section 756.021, et. seq. and Occupational Safety and Health Administration Standard 29 CFR, part 1926, Subpart P-Excavations, dated October 31, 1989, (as may be amended from time to time), and shall provide a copy of tables, charts, diagrams, drawings or tabulated data applicable to the manufacturer’s equipment to the HISD Issuing Authority prior to the commencement of any trenching operations that will be more than five (5) feet in depth.

P. HAZARDOUS MATERIALS. Contractor is responsible for reviewing all Asbestos Hazard Emergency Act Management Plans on file with HISD and for obtaining sign-off from HISD prior to commencing the Work utilizing HISD’s approved form. Contractor agrees that it shall not transport to, use, generate, dispose of, or install at the Project site any Hazardous Substance (defined in Paragraph 33 U), except in accordance with applicable Environmental Laws. Further, in performing the Work, Contractor shall not cause any release of Hazardous Substances into, or contamination of, the environment, including the soil, the atmosphere, any water course or ground water, except in accordance with applicable Environmental Laws (as hereafter defined at Paragraph 33 U). In the event contractor wishes to conduct any inspection or testing at the Project, it shall ensure that HISD is properly notified, as well as any landlord in the event HISD is leasing the Project premises.

Q. In the event Contractor engages in any of the activities prohibited in Paragraph 33 P, to the fullest extent permitted by law, Contractor hereby indemnifies and holds HISD, Architect/Engineer, and all of their respective trustees, officers, agents, and employees harmless from and against any and all claims, damages, losses, causes of action, suits and liabilities of every kind, including, but not limited to, expenses of litigation, court costs, punitive damages and attorney fees, arising out of, incidental to or resulting from the activities prohibited in this Article 33.

R. In the event the Contractor encounters on the Project site any Hazardous Substance, or what Contractor may

reasonably believe to be a Hazardous Substance, and which is being introduced to the Work, or exists on the Project site, in a manner violative of any applicable Environmental Laws, Contractor shall immediately stop Work in the area affected and report the condition to HISD and Architect in writing. The Work in the affected area shall not thereafter be resumed except by written authorization of HISD, if in fact a Hazardous Substance has been encountered and has not been rendered harmless. Contractor shall be responsible for the consequences of any failure to stop work under this Paragraph R.

S. In the event Contractor fails to stop the Work upon encountering a Hazardous Substance at the Project site, to the fullest extent permitted by law, Contractor hereby indemnifies and holds HISD, Architect/Engineer, and all of their respective trustees, officers, agents and employees harmless from and against any and all claims, damages, losses, causes of action, suits, and liabilities of every kind, including, but not limited to, expenses

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of litigation, court costs, punitive damages and attorney fees, arising out of, incidental to or resulting from Contractor’s failure to stop the Work.

T. HISD and Contractor may enter into a separate Job Order or Supplemental Job Order for Contractor to remediate and/or render harmless the Hazardous Substance, but Contractor shall not be required to remediate and/or render harmless the Hazardous Substance absent such agreement. Contractor shall not be required to resume work in any area affected by the hazardous Substance until such time as the Hazardous Substance has been remediated and/or rendered harmless.

U. For purposes of this Agreement, the term “Hazardous Substance” shall mean and include any element, constituent, chemical, substance, compound, or mixture, which are defined as a hazardous substance by any local, state or federal law, rule, ordinance, by-law, or regulation pertaining to environmental regulation, contamination, clean-up or disclosure, including, without limitation, the Comprehensive environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), the Resource Conservation and Recovery Act (“RCRA”), the Toxic Substances Control Act (“TSCA”), the Clean Water Act (“CWA”), the Clean Air Act (“CAA”), the Marine Protection Research and Sanctuaries Act (“MPRSA”), the Occupational Safety and Health Act (“OSHA”), the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), or other state superlien or environmental clean-up or disclosure statutes including all state and local counterparts of such laws (all such laws, rules and regulations being referred to collectively as “Environmental Laws”). It is the Contractor’s responsibility to comply with this Article 33 based on the law in effect at the time its services are rendered and to comply with any amendments to those laws for all services rendered after the effective date of any such amendments.

V. In those instances in which the presence of a Hazardous Substance was set forth in the AHERA documents or in which Contractor has other written notice of such through information given to Contractor by HISD or its representative prior to execution of this Contract, Contractor shall not be entitled to a Claim for any delays, disruption or interference it encounters. In those instances of Work stoppage due to the existence of such Hazardous Substances which were not set forth in the AHERA plans and of which Contractor has no other prior notice, Contractor may be entitled to a Claim for delay or Work stoppage if the requirements of Article 30 are met.

W. The Contractor shall indemnify HISD for the cost and expense HISD incurs (1) for remediation of a material or substance the Contractor brings to the site and negligently handles, or (2) where the Contractor fails to perform its obligations under Article 33 P, except to the extent that the cost and expense are due to HISD’s fault or negligence.

ARTICLE 34 USE AND POSSESSION PRIOR TO COMPLETION

A. HISD shall have the right to take possession of or use any completed or partially completed part of the Work. Before taking possession of or using any Work, the HISD Issuing Authority shall furnish the Contractor a list of items of Work remaining to be performed or corrected on those portions of the Work that HISD intends to take possession of or use. However, failure of the HISD Issuing Authority to list any item of Work shall not relieve the Contractor of responsibility for complying with the terms of this Contract. HISD’s possession or use shall not be deemed an acceptance of any Work under this Contract.

B. While HISD has such possession or use, the Contractor shall be relieved of the responsibility for the loss of or damage to the Work resulting solely from HISD’s possession or use, notwithstanding the terms of the Article in this Contract entitled “Permits and Responsibilities”. If prior possession or use by HISD delays the progress of the Work or causes additional expense to the Contractor, an equitable adjustment may be made in the Job Order price or the time of completion, and the Job Order may be modified in writing accordingly.

ARTICLE 35 NON-PREPRICED ITEMS OF WORK

A. Where a specific item or type of Work is not covered in the Construction Task Catalog; the Construction Task Catalog may be utilized to determine prices for the item or type of Work based on a comparison of form, fit and function to those specified in the Construction Task Catalog. HISD will use the Construction Task Catalog as a

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reference to make a determination of prices for such items prior to using the Non Pre-priced (NPP) procedures contained in Paragraph B of this Article.

B. For modifications including pricing of any item(s) which cannot be determined by the Construction Task Catalog; the

Contractor shall furnish, unless otherwise directed, a breakdown in sufficient detail to permit an analysis of all material, labor, equipment, subcontract costs, and shall cover all Work involved in the modification, whether such Work was deleted, added or changed. Any amount claimed for Subcontractors or material suppliers shall require bona-fide price quotations from at least three (3) sources for materials and equipment and a similar cost breakdown, which shall show Subcontractors/suppliers by prime, and others for the direct labor cost required per unit of the item, and an estimate and explanation of overhead applicable to the line item. The HISD Issuing Authority may accept fewer than three (3) quotes for NPP products and/or services if this requirement is not feasible. All Non Pre-priced items will be priced at actual cost plus application of the Adjustment Factor.

C. Frequently used Non Pre-priced items may be added to the Construction Task Catalog at the discretion of the HISD

General Manager. Hard copies of original quotes and summary Work sheets must be on file with the HISD Issuing Authority before NPP items are added to Construction Task Catalog database.

ARTICLE 36 OTHER CONTRACTS

HISD reserves the right to perform other construction Work, maintenance and repair Work and school program operations or award other contracts for additional Work at or near the site of Work during the time period of this Contract. The Contractor shall fully cooperate with the other contractors and with HISD employees and shall carefully adapt scheduling and performing the Work under this Contract to accommodate the additional Work, heeding any direction that may be provided by the HISD Issuing Authority. The Contractor shall not commit or permit any act that will interfere with the performance of Work by any other contractor or by HISD employees.

ARTICLE 37 COMPOSITION OF CONTRACTOR

If the Contractor hereunder is comprised of more than one legal entity, each such entity shall be jointly and severally liable hereunder.

ARTICLE 38 PATENT AND COPYRIGHT INDEMNITY

Except as otherwise provided, the Contractor agrees to indemnify HISD and its trustees, officers, agents, and employees against liability, including attorney fees, costs and expenses, for infringement upon any Letters Patent of the United States or copyright infringements arising out of the performance of this Contract or out of the use or disposal by or for the account of HISD of supplies furnished or construction Work performed hereunder.

ARTICLE 39 BUSINESS ETHICS

During the course of pursuing contracts, and the course of Contract performance, Contractor and its Subcontractors and vendors will maintain business ethics standards aimed at avoiding real or apparent impropriety or conflicts of interest. No substantial gifts, entertainment, payments, loans or other considerations beyond that which would be collectively categorized as incidental shall be made to any Officials or personnel of HISD, its Construction Managers, or its Architects, or to family

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members of any of them. At any time Contractor believes there may have been a violation of this obligation, Contractor shall notify HISD of the possible violation. HISD is entitled to request a representation letter from Contractor, its Subcontractors or vendors at any time to disclose all things of value passing from Contractor, its Subcontractors or vendors to HISD’s personnel, its Construction Managers and its Architects. Contractor shall comply with all applicable laws and regulations and HISD policies with regard to furnishing information and/or documents pertaining to disclosure of interested parties as set forth in the Texas Government code and other pertinent laws and regulations.

A. The right of the Contractor to proceed may be terminated by written notice if the HISD General Manager, or a designee, determines that the Contractor, its agent, or another representative offered or gave a gratuity (e.g., an entertainment or gift) to an officer, official, or employee of HISD.

B. If this Contract is terminated under Paragraph A above, HISD is entitled to pursue the same remedies as in a breach of this Contract.

C. The rights and remedies of HISD provided in this Article shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Contract.

D. Contractor must have executed and presented Form 1295, available at https://www.ethics.state.tx.us/forms/1295.pdf listing all interested parties, including a person who has a controlling interest in Contractor’s business, or who actively participates in facilitating the contract or negotiating the terms of the contract, including a broker, intermediary, adviser, or attorney for the business, to HISD at the time it executes the contract in compliance with Section 2252.908 of the Texas Government Code.

E. Contractor must also have filed a completed conflict of interest questionnaire, in compliance with Section

176.006 of the Texas Local Government Code, with the HISD records administrator, if the Contractor has an employment or other business relationship with a local government officer of HISD, or a family member of the officer; has given a local government officer of HISD, or a family member of the officer, one or more gifts with the aggregate value of more than $100 in the 12-month period preceding the date of the contract; or has a family relationship with a local government officer of HISD. The questionnaire must be filed not later than the seventh business day after the later of: (1) the date that the vendor: (A) begins discussions or negotiations to enter into a contract with HISD; or (B) submits an application, response to a request for proposals or bids, correspondence, or another writing related to a potential contract with HISD; or (2) the date the vendor becomes aware: (A) of an employment or other business relationship with a local government officer, or a family member of the officer of HISD; (B) that the vendor has given one or more gifts to a local government officer of HISD of more than $100 in the aggregate; (C) of a family relationship with a local government officer of HISD.

ARTICLE 40 OFFICIALS NOT TO BENEFIT

A. No member, officer, or employee of HISD, or of another local public body having jurisdiction over HISD, shall, during his tenure or for one year thereafter, have any interest, direct or indirect, in this Contract, company, or the proceeds thereof.

B. The Contractor covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of the Work required under this Contract. In the event any question of possible conflict should arise, the determination of HISD shall be controlling. The Contractor further covenants that in the performance of this Contract no person having any such interest shall be employed or subcontracted by the Contractor.

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https://www.ethics.state.tx.us/forms/1295.pdf

ARTICLE 41 DISSEMINATION OF CONTRACT INFORMATION

The Contractor shall not publish, permit to be published, or distribute for public consumption, any information, oral or written, concerning the results or conclusions made pursuant to performance of this Contract, without prior written consent of the HISD General Manager. (Two (2) copies of any material proposed to be published or distributed shall be submitted to the HISD General Manager.)

ARTICLE 42 AGENT TO ACCEPT SERVICE

The Contractor shall maintain within Harris County, Texas, a duly authorized agent to accept service of legal process on its behalf, and shall keep HISD advised of such agent’s name and address during the duration of this Contract, and for three (3) years after final payment or as long as the Contractor has warranty obligations under Article 25, whichever period terminates later.

ARTICLE 43 PERFORMANCE AND PAYMENT BONDS

A. The Contractor shall provide a Payment Bond and a Performance Bond, if required by law or HISD, based on the amount of any individual Job Order, said bond(s) covering payment of obligations arising thereunder and the faithful performance of the Job Order, respectively. The Performance Bond and Payment Bond(s) must be submitted to the HISD Issuing Authority within five (5) business days after receipt of a copy of the Job Order, or determination of cost of the Job Order, whichever is later. No Work under a Job Order may be commenced before the Performance Bond and Payment Bond, if required by law or by HISD, are executed, provided to, and approved by HISD. Surety companies must be authorized to write surety bonds in Texas and any such surety bond must comply with the requirements of Section 3503.005 of the Texas Insurance Code.

B. All bonds shall be originals. The Contractor shall require the attorney-in-fact who executes the required Bonds on behalf of the Surety to affix thereto a certified and current copy of the power-of-attorney. The name, address, and telephone number of a contact person for the Bonding Company shall be provided.

C. The Bonds shall be provided to comply with the terms and provisions of Chapter 2253 of the Texas Government Code and Texas Government Code 2269.411 and any other applicable law. Bonds shall be signed by an agent resident in the State of Texas and the date of bond shall be the date of issuance of the Job Order.

ARTICLE 44 ADDITIONAL BOND SECURITY

The Contractor shall promptly furnish additional security required to protect HISD and persons supplying labor or materials under this Contract if:

1. Any surety upon any bond furnished with this Contract becomes unacceptable to HISD.

2. Any surety fails to furnish reports on its financial condition as required by HISD, or

3. The Job Order price is increased so that the penal sum of any bond becomes inadequate in the opinion of HISD.

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ARTICLE 45 CONTRACTOR’S INSURANCE

A. The Contractor shall purchase and maintain in effect during the entire period of this Contract, including any maintenance period thereof, insurance of the types and with minimum limits of liability as stated below. Unless otherwise agreed to by HISD, the Contractor shall carry insurance with responsible carriers acceptable to HISD rated A-VII or better, by A.M. Best with minimum limits of liability coverage, as stated below, against claims for damages caused by bodily injury, including death, to employees and third parties, and claims for property damage.

Type of Coverage Minimum Limits Workers’ Compensation Statutory and Employer’s Liability $100,000 per accident Automobile Liability: Bodily Injury & Property Damage $1,000,000 Combined Single Limit For all owned, non-owned and hired vehicles. Commercial General Liability $1,000,000 per Occurrence

Such insurance shall protect Contractor from claims which may arise out of or result from Contractor’s operations whether such operations are performed by Contractor or by any Subcontractor or by anyone for whose acts any of them may be liable. In the event there is a deductible on any policy, the Contractor may be asked to provide evidence to the satisfaction of HISD that it is able to satisfy the deductible.

1. WORKERS’ COMPENSATION. A copy of a certificate of insurance, a certificate of authority to self-insure issued by the commission, or a coverage agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-84), showing statutory Workers’ compensation insurance coverage for the person’s or entity’s employees providing services on a Project is required for the duration of the Project. HISD shall be named as an alternate employer on the workers’ compensation policy.

Duration of the Project includes the time from the beginning of the Work on the Project until the Contractor’s/person’s Work on the Project has been completed and accepted by all governmental entities.

Persons providing services on the Project (“Subcontractor” in Texas Labor Code 406.096) include all persons or entities performing all or part of the services the Contractor has undertaken to perform on the Project, regardless of whether that person has employees. This includes, without limitation, independent contractors, Subcontractors, leasing companies, motor carriers, HISDs-operators, employees of any such entity, or employees of any entity that furnishes persons to provide services on the Project.

Services include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a Project. Services do not include activities unrelated to the Project such as food/beverage vendors and office supply deliveries.

The Contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas labor Code 401.011 (44) for all employees of the Contractor for the duration of the Project.

The Contractor must provide a certificate of coverage to HISD prior to HISD’s execution of this Contract.

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If the coverage period shown on the Contractor’s current certificate of coverage ends during the duration of the Project, the Contractor must, prior to the end of the coverage period, file a new certificate of coverage with HISD showing that coverage has been extended.

The Contractor shall obtain from each person providing services on a Project, and provide to HISD:

a. A certificate of coverage, prior to that person beginning Work on the Project, so HISD will have on file, certificates of coverage showing coverage for all persons providing services on the Project; and

b. No later than seven (7) days after receipt by the Contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the Project.

The Contractor shall retain all required certificates of coverage for the duration of the Project and for one year thereafter.

The Contractor shall notify HISD in writing by certified mail or personal delivery within ten days after the Contractor knew or should have known, of any change that materially affects the provision of coverage or any person providing services on the Project.

The Contractor shall post on each Project site a notice, in the text form, and manner prescribed by the Texas Workers’ Compensation Commission, informing all persons providing services on the Project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage.

The Contractor shall contractually require each person with whom it contracts to provide services on a Project to:

a. Provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code 401.011 (44) for all of its employees providing services on the Project for the duration of the Project;

b. Provide to the Contractor, prior to that person beginning Work on the Project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the Project for the duration of the Project.

c. Provide to the Contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the Project.

d. Obtain from each other person with whom it contracts, and provide to the Contractor:

1) A certificate of coverage, prior to the other person beginning Work on the Project; and

2) A new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the Project.

e. Retain all required certificates of coverage on file for the duration of the Project and for one year thereafter;

f. Notify the governmental entity in writing by certified mail or personal delivery, within ten (10) days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the Project; and

g. Contractually require each person with whom it contracts to perform as required by items a-f above, with the certificates of coverage to be provided to the person for whom they are providing services.

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By signing this Contract or providing or causing to be provided a certificate of coverage, the Contractor is representing to HISD that all employees of the Contractor who will provide services on the Project will be covered by Workers’ compensation coverage for the duration of the Project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self-insured, with the commission’s Division of Self-Insurance Regulation. Providing false or misleading information may subject the Contractor to administrative penalties, civil penalties, or other civil actions.

The Contractor’s failure to comply with any of these provisions is a breach of Contract by the Contractor that entitles HISD to declare this Contract void if the Contractor does not remedy the breach within ten (10) days after receipt of notice of breach from HISD.

The coverage requirement recited above does not apply to sole proprietors, partners, and corporate officers who are excluded from coverage in an insurance policy or certificate of authority to self-insure that is delivered, issued for delivery, or renewed on or after January 1, 1996. 28 TAC 110.110(i)

2. COMMERCIAL GENERAL LIABILITY. Contractor’s Commercial General Liability Insurance coverage is not

permitted to include any of the following endorsements: a. Contractual Liability Limitation, CG21 39 or its equivalent b. Amendment Of Insured Contract Definition, CG 24 26 or its equivalent c. Exclusion – Explosion, Collapse And Underground Property Damage Hazard, CG 21 42 or CG 21 43

or its equivalent d. Limitation of Coverage to Designated Premises or Project, CG 21 44 07 98 or its equivalent e. Exclusion – Damage to Work Performed By Subcontractors On Your Behalf, CG 22 94 or CG 22 95

or its equivalent f. Any type of Classification or Business Description Limitation endorsement g. Any type of Construction Defect Complete Operations exclusion endorsement h. Any type of endorsement modifying the Employer’s Liability exclusion i. Any type of Habitational or Residential exclusion j. Any type of Controlled Insurance Program or “Wrap” exclusions unless residual coverage is provided k. Any type of Punitive, Exemplary or Multiplied Damages exclusion l. Any type of Subsidence exclusion if the Contractor is engaged in any type of earth movement work,

including but not limited to soil compaction, fill or installation of storm or sewer drains

3. AUTOMOBILE LIABILITY INSURANCE covering all owned, hired and non-owned motor vehicles used in connection with the Work being performed under this Contract with limits of liability not less than:

$1,000,000 combined single limit: Each Person for Bodily Injury Each Accident for Bodily Injury Each Occurrence for Property Damage

4. ADDITIONAL INSURANCE

a. HISD’s Insurance: Contractor shall carry and pay for HISD’s Protective Liability Insurance in the

same amounts as specified above for the Contractor’s General Liability, and Name the Architect, Engineers, and Consultants as additional insured if applicable.

b. Comprehensive Catastrophic Liability: Excess over the above liability policies in the amount of $2,000,000.00 each occurrence (Combined limit).

B. The policies providing Commercial General Liability and Automobile Liability insurance as required above shall be

endorsed to name HISD, its trustees, officers and employees and consultants as Additional Insured as respects Contractor’s operations in performance of this Contract. Such insurance as is provided herein shall be primary and non-contributing with any other valid and collectible insurance available to HISD.

C. All policies providing Contractor’s insurance as required in this Article 45 shall be endorsed to provide the following: PAGE 32

1. Thirty (30) days written notice of cancellation or non-renewal to HISD at the address designated in Paragraph

H below. 2. Waiver of subrogation in favor of HISD, its trustees, officers and employees. D. The limits of liability as required above may be provided by a single policy of insurance or by a combination of

primary, excess or umbrella policies. But in no event shall the total limits of liability available for any one occurrence or accident be less than the amounts required above.

E. All policies of insurance presented as proof of compliance with the above requirements shall be on forms and with

insurance companies approved by HISD. All such insurance policies shall be provided by insurance companies having Best’s Ratings of A or greater and VII or greater (A/VII) as shown in the most current issue of Best’s Rating Guide. Policies of insurance issued by insurance companies not rated by Best’s or having Best’s ratings lower than A/VI will not be accepted as complying with the insurance requirements of this Contract unless such insurance companies were approved in writing prior to award of the Contract.

F. Proof of compliance with these insurance requirements shall be furnished to HISD in the form of original certificates of

insurance signed by an authorized representative or agent of the insurance company(ies) prior to HISD’s execution of the Contract. Renewal or replacement certificates shall be furnished to HISD not less than fifteen (15) days prior to the expiration or termination date of the applicable policy(ies).

G. Except for the mandatory Workers compensation coverage set out in Paragraph 45 A.1 pursuant to which Contractor

has no discretion, Contractor shall require any and all Subcontractors to carry insurance of the types and with limits of liability as Contractor shall deem appropriate and adequate for the Work being performed. Contractor shall obtain and make available for inspection by HISD upon request, current certificates of insurance evidencing insurance coverage carried by such Subcontractors.

H. Notice regarding insurance and cancellation or changes should be mailed to:

General Manager, Procurement Services Houston Independent School District Procurement Services 4400 West 18th Street Houston, Texas 77092

I. HISD reserves the right to require additional insurance coverage to be carried by the Contractor as deemed desirable by HISD, depending on the type of project.

ARTICLE 46

INDEMNIFICATION

THE CONTRACTOR AGREES TO INDEMNIFY, SAVE, PROTECT, DEFEND, AND HOLD HARMLESS THE OWNER, ARCHITECT/ENGINEER, OWNER’S PROGRAM MANAGER (IF APPLICABLE TO THE PROJECT) AND THEIR RESPECTIVE OFFICERS, DIRECTORS, TRUSTEES, AGENTS, BOARD MEMBERS, VOLUNTEERS, INVITEES, AND EMPLOYEES (“INDEMNIFIED PARTIES”) FROM AND AGAINST ANY AND ALL LIABILITY, COST, DAMAGE, EXPENSES, FINES AND ALL REASONABLE LEGAL FEES AND COURT COSTS, CLAIMS, LOSSES, CAUSES OF ACTION, SUITS, AND LIABILITY OF ANY KIND, INCLUDING ALL EXPENSES OF LITIGATION AGAINST THE INDEMNIFIED PARTIES, WHETHER OR NOT CAUSED IN PART BY ANY ACT OR OMISSION OF A PERSON OR ENTITY INDEMNIFIED HEREUNDER, ARISING FROM OR OUT OF THE CONTRACTOR’S ACTS OR OMISSIONS, INCLUDING, BUT NOT LIMITED TO CONTRACTOR’S NEGLIGENT OR GROSSLY NEGLIGENT PERFORMANCE OF THE WORK; NEGLIGENT OR GROSSLY NEGLIGENT USE OR MISUSE OF OWNER’S PROPERTY; NEGLIGENT OR INTENTIONAL ACTIONS, ERRORS OR OMISSIONS AND THOSE OF ITS EMPLOYEES, OFFICERS, DIRECTORS, AGENTS OR SUBCONTRACTORS; CONTRACTOR’S OR ITS SUBCONTRACTOR’S USE OF PROPERTY, EQUIPMENT, VEHICLES, OR MATERIALS; DEFECTIVE WORKMANSHIP; NEGLIGENT OR GROSSLY NEGLIGENT USE OR MISUSE OF UTILITIES; OR SUBCONTRACTORS’, EMPLOYEES’, AGENTS’, OFFICERS’, OR DIRECTORS’ NEGLIGENCE OR INTENTIONAL TORTS. IT IS THE EXPRESSED INTENT OF CONTRACTOR TO INDEMNIFY OWNER FROM THE PAGE 33

CONSEQUENCES OF OWNER’S JOINT AND/OR CONCURRENT NEGLIGENCE BUT NOT OWNER’S SOLE NEGLIGENCE. THIS INDEMNIFICATION SHALL NOT BE LIMITED TO DAMAGES, COMPENSATION OR BENEFITS PAYABLE UNDER INSURANCE POLICIES, WORKERS’ COMPENSATION ACTS, DISABILITY BENEFIT ACTS OR OTHER EMPLOYEE BENEFIT ACTS.

NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE INDEMNITY PROVISIONS INCLUDED HEREIN SHALL BE LIMITED SUCH THAT CONTRACTOR SHALL NOT BE REQUIRED TO INDEMNIFY, HOLD HARMLESS OR DEFEND OWNER OR ANY THIRD PARTIES AGAINST A CLAIM CAUSED BY THE NEGLIGENCE OR FAULT, THE BREACH OR VIOLATION OF A STATUTE, ORDINANCE, GOVERNMENTAL REGULATION, STANDARD, OR RULE, OR THE BREACH OF CONTRACT BY THE INDEMNITEE, ITS AGENT OR EMPLOYEE, OR ANY THIRD PARTY UNDER THE CONTROL OR SUPERVISION OF THE INDEMNITEE, OTHER THAN CONTRACTOR OR ITS AGENT, EMPLOYEE, OR SUBCONTRACTOR OF ANY TIER EXCEPT THAT CONTRACTOR SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND THE INDEMNITEES AGAINST ANY CLAIMS FOR THE BODILY INJURY OR DEATH OF AN EMPLOYEE OF SUBCONTRACTOR, ITS AGENTS, OR ITS SUBCONTRACTORS OF ANY TIER.

All obligations as set forth in this Article 46 shall survive completion, termination or abandonment of this Contract and any Job Order.

It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or enforceability of the indemnification obligation, such legal limitations are made a part of the indemnification obligation to the minimum extent necessary to bring the provision into conformity with the requirements of such limitations, and as so modified, the indemnification obligation shall continue in full force and effect.

Contractor shall hold HISD and its past and present and future trustees, officers and employees harmless and shall indemnify all such parties against any and all claims, demands, and causes of action of whatever kind or nature asserted by any third party, occurring or in any way incident to, arising out of, or in connection with any acts ( including any failure to act) of Contractor and its agents, employees, and subcontractors done in connection with this Contract. For the avoidance of doubt, Contractor’s indemnification obligations hereunder shall also apply to any claim alleging that any portion of any intellectual property provided or made available to HISD by Contractor, its employees, agents, officers, or subcontractors under this contract infringes a third party’s intellectual property rights, including , but not limited to, U.S. copyright, patent, or trademark.

Nothing in this Contract shall be construed to create a claim or cause of action against the District for which it is not otherwise liable, nor to waive any immunity or defense to which the District may be entitled nor to create an impermissible deficiency debt of the District. All obligations set forth in this Section shall survive the completion of or termination of this Contract.

ARTICLE 47 WAGE RATES

In compliance with the laws of Texas relating to Labor, the Contractor and each Subcontractor shall pay to all laborers, Workmen and mechanics employed by them in execution of this contract not less than the rates of pay determined to be the prevailing wages in the area of the construction site in the State of Texas for each craft or type of Workman, mechanic and apprentice required to execute this Contract. The prevailing rates of wages shall be paid on the Project in conformity with the laws of the State of Texas including but not limited to Tex. Gov’t Code, Chapter 2258. See Attachment E for current labor rates for this Contract.

ARTICLE 48 CLEAN AIR AND WATER

Contractor agrees to comply with all applicable standards, orders or requirements issued under Section 306 of the Clean Air Act (42 USC 1857 (h), Section 508 of the Clean Water Act (33 USC 1368), Executive Order 11838, and Environmental Protection Agency regulations (40 CFR, Part 15) which prohibit the use under nonexempt Federal Contracts, grants or loans, of facilities included on the EPA List for Violating Facilities.

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The use of materials which have been identified by governmental agencies as being hazardous or creating potentially hazardous conditions will not be allowed on any Project. Specifically, products containing lead, asbestos, polychlorinated biphenyl (PCB) are prohibited. The Contractor shall assume a strict and cautious position in responding to reports of other materials which may be identified as hazardous during the construction period. If any material originally specified or approved for use in the Work should become listed as suspected or verified, the Contractor shall immediately notify HISD and initiate efforts to postpone the installation until the matter can be investigated. Close-out documents require affidavits from the Contractor as well as each Subcontractor attesting to the fact that no products as prohibited for use in public facilities have been incorporated into the Work. Additionally, all requirements of laws and ordinances concerning “right to know” of the general public, as well as Workmen who perform Work on the Project shall be adhered to by all parties and shall be so specified.

ARTICLE 49 AVAILABILITY OF RECORDS AND INSPECTION

A. The Contractor shall maintain and the HISD Issuing Authority or representatives of the HISD Issuing Authority shall

have the right to examine Contractor’s records, which shall include but not be limited to accounting records (hard copy, as well as computer readable data); written policies and procedures; subcontract files (including proposals of successful and unsuccessful bidders, bid recaps, etc.); original estimates; estimating Worksheets; correspondence; back charge logs and supporting documentation; general ledger entries detailing cash and trade discounts earned; insurance rebates and dividends; and any other supporting evidence deemed necessary by the HISD to substantiate charges or claims related to any matters related to this Contract (including interviews with Contractor’s personnel and Subcontractor’s personnel). All such records and documents shall be open to inspection and subject to audit and/or reproduction by HISD’s agent or its authorized representative to the extent necessary to adequately permit evaluation and verification of (a) Contractor compliance with Contract requirements, (b) compliance with HISD’s business ethics policies, and (c) compliance with provisions for pricing or claims submitted by the Contractor or any of its payees. This right of examination shall include inspection at all reasonable times of the Contractor’s plants and/or offices, or parts of them, engaged in performing this Contract and whatever applicable records are maintained.

B. The HISD or its designee shall be afforded access to all of the Contractor’s records pursuant to the provisions of this

Article throughout the term of this Contract and for a period of three years after final payment, or longer if required by law.

C. Records pertaining to appeals under the Article 30 or to litigation or the settlement of claims arising under or relating

to the performance of this Contract shall be made available until disposition of such appeals, litigation, or claims. D. The Contractor shall insert an article containing all the provisions of this Article, in all subcontracts under this Contract,

altering the Article only as necessary to identify properly this Contracting parties and this Contracting office under HISD’s prime contract.

ARTICLE 50

ADMINISTRATIVE CONTROL OF CORRESPONDENCE

Correspondence, transmittal letters, etc., issued by each party to this Contract will be sequentially numbered, or as otherwise directed by HISD, for ease of control and cross reference. Each document will also refer to this Contract number and Job Order number. The correspondence shall be addressed to the appropriate HISD representative set forth elsewhere in this Contract. Should it be addressed to someone other than the HISD Issuing Authority a copy shall be provided to the HISD Issuing Authority.

ARTICLE 51

CONTRACT ORDER OF PRECEDENCE

In the event of an inconsistency between provisions of this Contract, the inconsistency shall be resolved by giving precedence in the following order: PAGE 35

1. This Contract; 2. Executed Job Orders; 4. Drawings; 5. Specificaitons; 6. HISD General Requirements for the Work; and (See Attachment “C”) 7. HISD CSP # 16-01-21, including all addenda thereto.

8. Form F of Contractor’s Proposal to CSP # 16-01-21

ARTICLE 52 NOTICES

All notices to either party by the other shall be delivered personally or sent by U.S. registered or certified mail, postage prepaid, addressed to such party at the following respective addresses for each: 1. HOUSTON INDEPENDENT SCHOOL DISTRICT 4400 West 18th Street Houston, Texas 77092

Attention: Richard L Gay, CPPO Chief Procurement Officer, Procurement Services

3. Contractor: ________________________________ ________________________________

________________________________

________________________________ Attention: ________________________________ Title: ________________________________

Each notice shall be deemed given on the date so delivered or so deposited in the mail, unless otherwise provided herein. Either party hereto may change the above address by sending written notice of such change of address to the other in the manner provided for above.

ARTICLE 53

SEVERABILITY

If any provision of this Contract, or the application thereof to any person or circumstances is rendered or declared illegal for any reason or shall be invalid or unenforceable, the remainder of this Contract and the application of such provision to other persons or circumstances shall not be affected thereby but shall be enforced to the greatest extent permitted by applicable law. The parties agree to negotiate in good faith for a proper amendment to this Contract in the event any provision hereof is declared illegal, invalid, or unenforceable.

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ARTICLE 54 WAIVER

A. Neither HISD’s review, approval or acceptance of, nor payment for, the Work required under this Contract shall be

construed to operate as a waiver of any rights under this Contract, or of any cause of action arising out of the performance of this Contract, and the Contractor shall be and remain liable to HISD in accordance with applicable law and the terms of this Contract for any damages to HISD caused by the Contractor’s negligent acts, errors or omissions in the performance of any of the Services furnished under this Contract.

B. The waiver by HISD of any breach of any term, covenant, condition, or agreement herein contained shall not be deemed to be a waiver of any subsequent breach of the same, or of a breach of any other term, covenant, condition, or agreement herein contained.

C. No Waiver of Immunity. HISD does not waive or relinquish any immunity or defense on behalf of itself and its trustees, officers, employees, and agents as a result of their execution of this Contract and performance of the functions or obligations described herein. Nothing herein shall be construed as creating any personal liability on the part of any trustee, officer, director, employee or representative of HISD.

D. Nothing in this Contract shall be construed to create a claim or cause of action against HISD for which it is not otherwise liable, nor to waive any immunity or defense to which HISD may be entitled, nor to create an impermissible deficiency debt of HISD.

E. Notwithstanding anything herein to the contrary, neither the execution of this Contract by HISD nor any other conduct of any representative of HISD relating to the Contract shall be considered a waiver of sovereign immunity to suit beyond what is provided for by Section 271.152 of the Texas Local Government Code.

ARTICLE 55 MISCELLANEOUS

During the performance of this Contract, the Contractor agrees as follows:

A. M/WBE Participation. Contractor, immediately after the execution of this Contract, shall report their M/WBE participation goal as a percent of the total compensation. During the performance of all services under this Contract, Contractor shall comply with all M/WBE policies of HISD as of the date of this Contract, and as amended during the course of the Work. The information shall be identified per firm, discipline and participation. Throughout the period of Work the Contractor shall attempt to maintain the M/WBE goals as described in the Request for Proposal, Attachment D.

B. The Contractor will not discriminate against any employee or applicant for employment because of race, color, sex, religion, national origin or age. The Contractor will take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, sex, religion, national origin or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the requirements of these nondiscrimination provisions.

C. The Contractor will state, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, that all qualified applicants will receive consideration for employment without regard to race, color, sex, religion, national origin or age.

D. By the signing of this Contract, the Contractor signifies that it does not maintain or provide for its employees any segregated facilities at any of its establishments, and that it does not permit its employees to perform their services at any location, under its control, where segregated facilities are maintained. Contractor further certifies that it will not maintain or provide for its employees any segregated facilities at any of its establishments, and that it will not permit its employees to perform their services at any location, under its control, where segregated facilities are maintained. Contractor agrees that a breach of this certification is a violation of the Equal Opportunity Clause in this Contract. As

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used in this certification, the term “segregated facilities” means any waiting rooms, Work areas, rest rooms and wash rooms, restaurants and other eating areas, time clocks, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees which are segregated on the basis of race, creed, color, or national origin, because of habit, local custom, or otherwise. Contractor further agrees that (except where it obtained identical certifications from proposed consultants for specific time period) it will obtain identical certification from proposed Subcontractors prior to the award of a contract exceeding $10,000.00 which are not exempt from the provisions of the Equal Opportunity Clause, that it will retain such certifications in its files; and that it will forward the following notice to such proposed Subcontractors (except where the proposed Subcontractors have submitted identical certifications for specific time periods):

“Notice to prospective Subcontractors of requirement for certification of non-segregated facilities”

A certification of non-segregated facilities, as required by the May 9, 1967 Order (32 F.R. 7439, May 19, 1967) on elimination of segregated facilities by the Secretary of Labor, must be submitted prior to the award of a contract exceeding $10,000.00 which is not exempt from the provisions of the Equal Opportunity Clause. The certification may be submitted either for each subcontract or for all subcontracts during a period (i.e., quarterly, semiannually, or annually).

“Note: The penalty for making false statements in offers is prescribed in 18 U.S.C.1001.”

E. Except as otherwise provided in this Contract, no action or failure to act by the HISD, Architect/Engineer or Contractor shall constitute a waiver of a right or duty afforded them under this Contract, nor shall such action or failure to act constitute approval of or acquiescence in a breach there under, except as may be specifically agreed in writing.

F. Neither Contractor nor any of its materialmen, laborers or Subcontractors shall have any lien rights against the HISD’s lands, buildings or funds. No materialmen, laborers or Subcontractors of the Contractor shall have any enforceable rights against HISD on this Contract. Materialmen, laborers and Subcontractors of the Contractor may have rights under any Payment Bond provided by the Contractor, but cannot look to HISD for any help in enforcement of those rights.

G. Background Checks.

Pursuant to Sections 22.0834, 22.0835 and 22.085 of the Texas Education Code, Contractor hereby certifies that all employees, subcontractors and volunteers of the Contractor who are hired by Contractor on or after January 1, 2008, and who have or will have continuing duties related to the contracted services, and have or will have direct contact with students, have passed a national criminal history background record information review as required by those sections. Contractor must provide a list of the names and dates of birth of all employees who have passed the background check to District.

Contractor shall send or ensure that the employee or applicant sends to the Texas Department of Public Safety

(“DPS”) information that is required by the DPS for obtaining national criminal history record information, which may include fingerprints and photographs. DPS shall obtain the person’s national criminal history record information and report the results through the criminal history clearinghouse as provided by Section 411.0845, Government Code.

Contractors that have more than 1 employee must set up an account with the Texas Department of Public Safety

(“DPS”) in order to obtain criminal histories on their covered employees. To set up an account with DPS, a Contractor should contact the crime records service bureau at 512-424-2474.

Contractors with a single employee must obtain a FAST PASS from the District in order to obtain their criminal history.

Contractors should contact the District’s Human Resources Department to obtain the FAST PASS at 713 556-7343. Contractors must present a list of all employees who may have direct contact with students to HISD. Contractor must also obtain certifications from all subcontractors that their employees to whom Section 22.0834

applies have also passed a national criminal history background record information review.

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Contractor must also provide assurances that all of its employees, subcontractors and volunteers, including those hired before January 1, 2008, who have contact with students have passed a criminal history background check current within the last year. If an employee, subcontractor or volunteer of the Contractor has a criminal conviction or has received deferred adjudication for a felony offense or a misdemeanor involving moral turpitude, the District may elect not to enter into this Contract, or cancel the Contract.

WARNING: Section 44.034 of the Texas Education Code requires that a person or business entity that enters into a

contract with a school district must give advance notice to the district if the person or an owner or operator of the business entity has been convicted of a felony. The notice must include a general description of the conduct resulting in the conviction of a felony.

The District may terminate this Contract if the district determines that the person or business entity failed to give

notice as required by Section 44.034 (a) or misrepresented the conduct resulting in the conviction. The District will compensate the person or business entity for undisputed services performed before the termination of the contract.

H. Business Certificates/Taxes. All individuals or, entities entering into a contract with HISD must adhere to the following applicable Texas laws as they pertain to their individual type of Ownership:

Corporations (domestic [formed under Texas law] or foreign [formed under laws of another state]) shall be properly registered with the Texas Secretary of State and the Comptroller of Public Accounts as required by TITLE 34, Part 1, Chapter 3, Subchapter V, Rule 3.586 of the Texas Administrative Code. A current “Certificate of Good Standing” from the Texas Comptroller of Public Accounts shall be made available upon request stating that the corporation charter is current and all Texas Franchise Reports and Taxes are paid.

Partnership and Joint Stock Companies, and Limited Liability Partnerships (domestic [formed under Texas law] or foreign [formed under laws of another state]) shall be, properly registered with the Texas Secretary of State in accordance with TITLE 105 – PARTNERTHIPS AND JOINT STOCK COMPANIES, CHAPTER ONE – PARTNERSHIPS, LIMITED PARTNERSHIPS, TEXAS REVISED LIMITED PARTNERSHIP ACT, Article 6132a-1, “Texas Revised Limited Partnership Act”. All partners in a partnership must file a “Certificate of Limited Partnership” with the Texas Secretary of State, which shall be made available for inspection upon request.

Contractor, whether Corporate, Partnership, or Sole Proprietorship, must be current on its HISD Property Taxes. If commercial personal property is located in the jurisdiction, current renditions of these properties must be filed with the Chief Appraiser, as required by Chapter 22, Section 22.01, of the Texas “PROPERTY TAX CODE”, and Contractor must be current on all applicable ad valorem taxes owing to HISD.

I. Debarment and Suspensions. Contractor certifies, to the best of its knowledge and belief, that it is not presently debarred, suspended for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal department or agency.

Contractor agrees to comply with all applicable requirements of all federal laws, executive orders, regulations, applicable guidelines, and policies governing this program, particularly relating to nondiscrimination. These include by are not limited to : (i) Title VI of the Civil Rights Act of 1964, as amended; (ii) Title IX of the Education Amendments of 1972, as amended; (iii) Section 504 of the Rehabilitation Act of 1973, as amended; the Age Discrimination Act of 1975, as amended; and iv) the Americans with Disabilities Act, as amended.

ARTICLE 56

MERGER

This Contract sets forth the entire agreement between the parties with respect to the subject matter thereof, and supersedes and replaces all proposal, negotiations, representations, and implied obligations.

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ARTICLE 57 INTERPRETATION, JURISDICTION AND VENUE

This Contract shall be construed and interpreted solely in accordance with the laws of the State of Texas. Venue of any suit, right or cause of action arising under or in connection with this Contract shall lie exclusively in a state court of competent jurisdiction in Harris County, Texas.

ARTICLE 58 ATTACHMENTS

The Attachments referred to in this Contract and attached hereto are incorporated herein for all purposes as if set

forth at length.

ARTICLE 59 ENGINEERING AND ARCHITECTURAL SERVICES

For any Job Order, HISD shall always have the option, at any time before or during the course of the Work, to name an Architect/Engineer acting as an agent of HISD as the supervising architect(s) and/or engineer(s) for the Job Order, either in the Job Order or in another writing issued by HISD.

ARTICLE 60

ATTORNEY FEES

In connection with HISD’s defense of any suit against it and/or HISD’s prosecution of any claim, counterclaim or action to enforce any of its rights and/or claims hereunder, in which HISD prevails as to all or any portion of its defense(s), claims, counterclaims or actions, HISD shall be entitled to recover its actual attorney’s fees and expenses incurred in defending such suit and/or in prosecuting such claim or action.

ARTICLE 61 NO ASSIGNMENT

Contractor shall not assign, sublet or transfer this Contract without the written consent of HISD.

ARTICLE 62 MEDIATION

At the sole option of HISD, any claim, dispute or other matter in question arising out of or related to this Contract shall be subject to non-binding mediation as a condition precedent to the institution of legal or equitable proceedings by either party. The parties shall share the mediator’s fee and any filing fees equally. The mediation shall be held in Houston, Texas.

ARTICLE 63

AUDIT

Contractor’s records, which shall include but not be limited to accounting records (hard copy, as well as computer readable data if it can be made available) written policies and procedures; subcontract files (including bid recaps, original estimates; estimating Work sheets; correspondence; back-charge logs and supporting documentation and any other supporting documents deemed necessary by HISD to substantiate charges related to any matters related to this Contract (including interviews with Contractor’s personnel and Professional Consultant personnel) shall be open to inspection and subject to audit and/or reproduction by HISD’s agent or its authorized representative to the extent necessary to (a) adequately permit PAGE 40

evaluation and verification of Contractor’s compliance with Contract requirements, (b) compliance with HISD’s business ethics policies, and (c) compliance with provisions for pricing or claims submitted by the Contractor or any of its payees. HISD or its designee shall be afforded access to all of the Contractor’s records pursuant to the provisions of this Article throughout the term of this Contract and for a period of three years after final payment or longer if required by law.

ARTICLE 64 RELATIONSHIP OF PARTIES

It is understood and agreed that the Contractor is a separate legal entity from HISD and neither it, nor any employees, volunteers, or agents contracted by it shall be deemed for any purposes to be employees or agents of HISD. Contractor assumes full responsibility for the actions of its personnel and volunteers while performing any services incident to this Contract, and shall remain solely responsible for their supervision, daily direction and control, payment of salary (including withholding of income taxes and social security), Workers’ compensation, disability benefits and like requirements and obligations.

ARTICLE 65 NO WAIVER OF IMMUNITY

HISD does not waive or relinquish any immunity or defense on behalf of itself and its trustees, officers, employees, and agents as a result of their execution of this Contract and performance of the functions or obligations described herein. Nothing herein shall be construed as creating any personal liability on the part of any trustee, officer, director, employee or representative of HISD.

IN TESTIMONY OF WHICH, this instrument has been executed by and on behalf of the Contractor and HISD on the respective dates indicated below.

HOUSTON INDEPENDENT SCHOOL DISTRICT CONTRACTOR

By: ____________________________ By: ______________________________________ Date Manuel Rodriguez, Jr., President Date

Board of Education

Printed Name: ____________________

Title:_____________________________ By: ______________________________________

___________________ Jolanda Jones, Secretary Date Taxpayer Identification Number Board of Education

By:______________________________________ Kenneth Huewitt Date Interim Superintendent of Schools

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APPROVED AS TO FUNDING AND BUSINESS TERMS:

___________________________________

Sherrie Robinson, Date Interim Chief Financial Officer

APPROVED AS TO FORM:

____________________________ Date: ______ Donald Boehm Finance Attorney, HISD

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ATTACHMENT A

ADJUSTMENT FACTORS/PRICING

The Contractor shall furnish all supervision, labor, materials, tools, supplies, equipment, transportation, bonds, insurance, including taxes, overhead & profit to perform all operations necessary and required for the Job Order Construction Contract in accordance with the terms and conditions of the proposed Contract, and as further specified in individual Job Orders. A. Adjustment Factor for Normal Working Hours: As stated in Form F of Contractor’s Proposal, a copy of which may be supplemented and included in this Attachment A at the time of HISD’s execution of this Contract. B. Adjustment Factor for Other Than Normal Working Hours: As stated in Form F of Contractor’s Proposal, a copy of which may be supplemented and included in this Attachment A at the time of HISD’s execution of this Contract. C. Adjustment Factor for Non Pre-priced Adjustment Factor: As stated in Form F of Contractor’s Proposal, a copy of which may be supplemented and included in this Attachment A at the time of HISD’s execution of this Contract. The actual pricing for Work performed under this Contract will be based on the unit rates contained in the most current volume of the designated unit price book as set forth in this Contract. Hours of Work: Standard Hours of Work (Normal Working Hours) will be from 8:00 am to 5:00 pm; Monday through Friday except HISD holidays. Non-Standard Hours (Other than Normal Working Hours) will be from 5:01 pm to 7:59 am and all day Saturday, Sunday and HISD holidays. In some cases Work must be done during non-schools hours; but work must not disrupt the instructional and safety concerns of students and staff at any time. The Contractor will be required to notify the HISD General Manager, HISD Issuaing AUthority or his/her authorized representative, in writing, as a part of the Job Order Price Proposal, when planning to Work non-standard Work hours on any Job Order. The provision for use of non-standard hours will be included as a part of the Job Order. Any Work necessary on non-standard hours to maintain Project schedules, due to Contractor delay, shall be performed without additional cost to HISD.

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ATTACHMENT B

PROCESS FOR CREATION OF JOB ORDER

A. Ordering Procedures:

1. Initiation of a Job Order.

a) As the need exists, the District will issue a Request for Job Order Price Proposal to notify Contractor(s) of a Project. The District may schedule a Scope Meeting and issue a Notice of Scope Meeting.

b) The Contractor(s) shall attend the Joint Scope Meeting and discuss, at a minimum:

i. the general scope of the work;

ii. alternatives for performing the work and value engineering;

iii. access to the site and protocol for admission;

iv. hours of operation;

v. staging area;

vi. requirements for catalog cuts, technical data, samples and shop drawings;

vii. requirements for professional services, sketches, drawings, and specifications;

viii. construction duration;

ix. liquidated damages;

x. the presence of hazardous materials;

xi. date on which the Job Order Proposal is due.

c) The District will prepare a Request for Job Order Price Proposal containing a Detailed Scope of Work referencing any sketches, drawings, photographs, and specifications required to document accurately the work to be accomplished. The Contractor(s) shall review the Detailed Scope of Work and request any required clarifications, changes or modifications. When an acceptable Detailed Scope of Work has been prepared, the District will issue a Request for Job Order Proposal that will require the Contractor(s) to prepare a Job Order Price Proposal. The Detailed Scope of Work, unless modified by the District, will be the basis on which the Contractor(s) will develop a Job Order Price Proposal and the District will evaluate the same.

2. Preparation of the Job Order Price Proposal.

a) The Contractor's Job Order Price Proposal shall include, at a minimum:

i. Proposed Job Order Price;

ii. Required drawings or sketches;

iii. List of anticipated Key Personnel and Subcontractors;

iv. M/WBE Submissions Specific to the Job Order;

v. Construction schedule; PAGE 44

vi. Other documents requested by HISD or its representative.

b) The Job Order Price shall be the value of the approved Job Order Price Proposal.

c) The value of the Job Order Price Proposal shall be calculated by summing the total of the calculations for each Pre-priced Tasks (unit price x quantity x Adjustment Factor/ Coefficient) plus the value of all Non Pre-priced Tasks.

d) Contractors will prepare Job Order Price Proposals in accordance with the following:

i. Pre-priced Task: A task described in, and for which a unit price is set forth in, the Construction Task Catalog®.

ii. Non Pre-priced Task: A task that is not set forth in the Construction Task Catalog®.

iii. Information submitted in support of Non Pre-priced Tasks shall include, but not be limited to, the following:

1. Catalog cuts, specifications, technical data, drawings, or other information as required to evaluate the task.

2. If the Contractor will perform the work with its own forces, it shall submit three independent quotes for all material to be installed and shall, to the extent possible, use Pre-priced Tasks for labor and equipment from the Construction Task Catalog®. If the work is to be subcontracted, the Contractor must submit three independent quotes from subcontractors. The Contractor shall not submit a quote or bid from any supplier or subcontractor that the Contractor is not prepared to use. The District may require additional quotes and bids if the suppliers or subcontractors are not acceptable or if the prices are not reasonable.

3. The final price submitted for Non Pre-priced Tasks shall be according to the following formula:

For Non Pre-priced Tasks Performed with Contractor's Own Forces:

A = The hourly rate for each trade classification not in the Construction Task Catalog® multiplied by the quantity;

B = The actual rental rate for each piece of Equipment rented from a third party that is not in the Construction Task Catalog®, multiplied by the quantity. There shall be no charge to HISD for use of Contractor-owned Equipment;

C = Lowest of three independent quotes for all materials.

Total for a Non Pre-priced Tasks performed with Contractor’s Own Forces = (A+B+C) x Non Pre-Priced Task Adjustment Factor

For Non Pre-priced Tasks Performed by Subcontractors:

If the Non Pre-priced Task is to be subcontracted, the Contractor must submit three independent quotes for the work.

D = Lowest of three Subcontractor Quotes

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Total Cost for Non Pre-priced Tasks performed by Subcontractors = D x Non Pre-Priced Task Adjustment Factor

4. After a Non Pre-priced Task is used on three separate Job Orders, the Unit Price for such task will be established, following approval by the District, and fixed as a permanent Non Pre-priced Task which will no longer require price justification.

5. The District’s determination as to whether a task is a Pre-priced Task or a Non Pre-priced Task shall be final, binding and conclusive as to the Contractor.

e) Whenever, because of trade jurisdiction rules or small quantities, the cost of a minor task in the Job Order Price Proposal is less than the cost of the actual labor and material to perform such task, the District may permit the Contractor to be paid for such task as a Non Pre-priced Task, or use Pre-priced labor tasks and material component pricing to cover the actual costs incurred. Provided, however, that there is no other work for that trade on the Project or other work for that trade cannot be scheduled at the same time and the final charge does not exceed $1,000.

f) Contractor shall make the necessary arrangements for and obtain all filings and permits required for the Work. If the Contractor is required to pay an application fee for filing a project, a fee to obtain a building permit, or any other permit fee to the City, State or some other governmental or regulatory agency, then the amount of such fee paid by the Contractor for which a receipt is obtained shall be treated as a Reimbursable Task to be paid without mark-up. The cost of expediting services or equipment use fees are not reimbursable.

g) The Contractor's Job Order Proposal shall be submitted by the date indicated on the Request for Proposal. All incomplete Job Order Price Proposals shall be rejected. The time allowed for preparation of the Contractor's Job Order Price Proposal will depend on the complexity and urgency of the Job Order but should average between seven and fourteen days. On complex Job Orders, such as Job Orders requiring incidental engineering/architectural drawings and approvals and permits, allowance will be made to provide adequate time for preparation, review and submittal of the necessary documents.

h) In emergency situations and minor maintenance and repair Job Orders requiring immediate completion, the Job Order Price Proposal may be required quickly and the due date will be so indicated on the Request for Job Order Price Proposal.

i) By submitting a Job Order Price Proposal to the District, the Contractor agrees to accomplish the Detailed Scope of Work in accordance with the Request for Proposal at the price submitted. It is the Contractor's responsibility to include the necessary tasks and quantities in the Job Order Price Proposal and apply the appropriate Adjustment Factor(s)/ Coefficient(s) prior to delivering it to the District.

j) If the Contractor requires clarifications or additional information regarding the Detailed Scope of work in order to prepare the Job Order Price Proposal, the request must be submitted so that the submittal of the Job Order Price Proposal is not delayed.

3. Review of the Job Order Price Proposal and Issuance of the Job Order

a) The District will evaluate the entire Job Order Price Proposals received from all Contractors to whom a Request for Job Order Price Proposal was issued, and will compare these with the District's estimate of the Detailed Scope of Work. HISD reserves the right to determine which Contractor’s Job Order Price Proposal constitutes the best value, most reasonable approach, and appropriateness of the tasks and quantities proposed. No Contractor is guaranteed the issuance of any Request for Job Order Price Proposal or the assignment of any Job Order.

b) The Contractor may choose the means and methods of construction; subject however, to the District's right to reject any means and methods proposed by the Contractor that:

i. Will constitute or create a hazard to the work, or to persons or property;

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ii. Will not produce finished Work in accordance with the terms of the Contract Documents; or

iii. Unnecessarily increases the price of the Job Order when alternative means and methods are available.

c) The District reserves the right to reject any Job Order Price Proposal or cancel a Project for any reason. The District also reserves the right not to issue a Job Order if it is determined to be in the best interests of the District. The District may perform such work by other means. The Contractor shall not recover any costs arising out of or related to the development of the Job Order including but not limited to the costs to attend the Scope Meeting, review the Detailed Scope of Work, prepare a Job Order Price Proposal (including incidental architectural and engineering services), subcontractor costs, and the costs to review the Job Order Price Proposal with the District.

d) By submitting a Job Order Price Proposal to the District, the Contractor agrees to accomplish the Detailed Scope of Work in accordance with the Request for Job Order Price Proposal at the lump sum price submitted. It is the Contractor's responsibility to include the necessary Pre-priced Tasks and Non Pre-priced Tasks and quantities in the Job Order Price Proposal prior to delivering it to the District.

e) Each Job Order provided to the Contractor shall reference the Detailed Scope of Work and set forth the Job Order Price and the Job Order Completion Time. All provisions of this Contract shall be applicable to each Job Order. The Job Order, signed by the District and delivered to the Contractor constitutes the District's acceptance of the Contractor's Job Order Price Proposal. A signed copy of the Job Order will be provided to the Contractor.

f) In the event that immediate emergency response is necessary, HISD reserves the right to execute a Job Order with a Contractor without issung a Request for Job Order Price Proposal.

4. Annual Update of the Construction Task Catalog®

a) The Construction Task Catalog® designated in the CSP will be in effect for the first year of this contract.

b) On the anniversary of the Contract, a new Construction Task Catalog® will be furnished. The new Construction Task Catalog® will be effective for the twelve (12) month period after the anniversary of the effective date of the Contract. The Construction Task Catalogs® that accompany each anniversary shall only apply to Job Orders issued after the effective date of that specific renewal option and shall have no impact on Job Orders issued prior to the effective date of that specific renewal option.

c) The Adjustment Factors / Coefficients submitted with the Contractor’s CSP Prooposal, and as set forth in Attachment “A” shall be used for the full term of the contract, plus any Option Terms. On the annual anniversary of the Contract, The District shall issue the Contractor a new Construction Task Catalog®. The Contractor will be issued the new Construction Task Catalog® for review prior to accepting new work. The Contractor shall use the Construction Task Catalog® in effect on the date that the Job Order is issued. However, the Contractor cannot delay the issuance of a Job Order to take advantage of a scheduled update of the Construction Task Catalog®. In that event, the Contractor shall use the Construction Task Catalog® that would have been in effect without the delay.

5. Job Order Contracting Software and License

a) Job Order Contracting Software

i. The District selected The Gordian Group’s (Gordian) Job Order Contracting (“JOC”) Solution (Gordian JOC Solution®) for their JOC program. The Gordian JOC Solution includes Gordian’s proprietary eGordian® JOC applications (JOC Applications) and construction cost data (Construction Task Catalog®), which shall be used by the Contractor to prepare and submit Job Order Price Proposals, subcontractor lists, and other requirements specified by the District. Contractor’s use,

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in whole or in part, of Gordian’s JOC Applications, Construction Task Catalog and other proprietary materials provided by Gordian for any purpose other than to execute work under this Contract for the District is strictly prohibited unless otherwise approved in writing by Gordian. The Contractor hereby agrees to abide by the terms of the following JOC System License.

b) JOC System License

i. Gordian hereby grants to the Contractor, and the Contractor hereby accepts from Gordian for the term of this Contract or Gordian’s Contract with the District, whichever is shorter, a non-exclusive right, privilege, and license to Gordian’s proprietary JOC System and related proprietary materials (collectively referred to as “Proprietary Information”) to be used for the sole purpose of executing Contractor’s responsibilities to the District under this Contract. The Contractor hereby agrees that Proprietary Information shall include, but is not limited to, Gordian‘s JOC Applications and support documentation, Construction Task Catalog, training materials and other Gordian provided proprietary materials. In the event this Contract expires or terminates as provided herein, or Gordian’s Contract with the District expires or terminates, this JOC System License shall terminate and the Contractor shall return all Proprietary Information in its possession to Gordian.

ii. Gordian may terminate this License Agreement in the event of: (1) any breach of a material term of this Agreement by the Contractor which is not remedied within ten (10) days after written notice to the breaching party; or (2) the other party’s making an assignment for the benefit of its creditors, or the filing by or against such party of a petition under any bankruptcy or insolvency law, which is not discharged within thirty (30) days of such filing.

iii. The Contractor acknowledges that disclosure of Proprietary Information will result in irreparable harm to Gordian for which monetary damages would be an inadequate remedy and agrees that no such disclosure shall be made to anyone without first receiving the written consent of Gordian. The Contractor further acknowledges and agrees to respect the copyrights, registrations, trade secrets, and other proprietary rights of Gordian in the Proprietary Information during and after the term of this Contract and shall at all times maintain complete confidentiality with regard to the Proprietary Information provided to the Contractor.

iv. In the event of a conflict in terms and conditions between this JOC System License and any other terms and conditions of this Contract or any Job Order, Purchase Order or similar purchasing document issued to the Contractor by the District, this JOC System License shall take precedence.

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ATTACHMENT C

Houston Independent School District

GENERAL REQUIREMENTS OF THE WORK

FOR ALL JOB ORDER CONTRACTORS AND SUBCONTRACTORS

A. GENERAL The Contractor shall provide full time supervision while its forces are Working on any Job Order Contract Project. The Contractor’s job site supervision shall be experienced in his trade and be capable and have authority to make decisions regarding costs, manpower, and schedule. The Contractor shall coordinate, in a timely manner, all city, county, state, or other inspections as required for the completion of its Work in accordance with the Project Schedule. The Contractor will be required to attend and participate in regularly scheduled HISD/Architect/Contractor Progress Meetings which will be held weekly. All principal supervisory personnel shall attend these meetings. Attendance is Mandatory. Items discussed will include safety, schedule, trade coordination, quality control, material deliveries and clean up. The Contractor shall maintain as-built drawings which will be updated on a weekly basis showing all changes in the Work. These drawings will be legibly identified as “Record Documents”, with changes noted in a legible, concise and explanatory manner in red ink. Project signs or advertisements of any nature shall not be installed on the jobsite or structure without written permission of HISD. Contractor will furnish all samples, mix-designs, mock-ups, brochures, shop drawings, colors, schedules, and descriptive literature required for submission to the Architect within ample time to allow for checking and to prevent any delay due to lack of approval. Submittals shall be in strict accordance with Specification requirements and Contract Documents or as agreed upon prior to submittal.

B. SITE MANAGEMENT All material deliveries and storage on addition/renovation Projects shall be subject to the approval of HISD. The Contractor agrees to receive all his materials and store them in areas designated by HISD. Prior to shipping any materials that will be stored on HISD controlled sites, the Contractor shall submit a schedule for delivery and installation of all materials to HISD.

It shall be the Contractor’s responsibility to ensure that all road entrances and exits, and fire lanes are not blocked by its deliverymen or Subcontractors in their employ. The Contractor will designate lunch and break areas outside the building footprint. Eating and drinking will be permitted only in these areas or in the designated parking area. No alcoholic beverages are allowed on HISD properties. All cups, cans, food, wrappers, and other such debris shall be deposited in containers furnished by the Contractor. No construction debris shall be deposited in these containers. Under no circumstances is eating in the building allowed. No glass containers are allowed on site. No smoking or use of smokeless tobacco products is permitted in the buildings or on site.

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The Contractor shall provide a minimum of two portable toilets for Projects up to 40 total Workers. For every 1 to 20 additional Workers, one additional portable toilet shall be provided. For example, if the Project has 45 Workers, three portable toilets shall be provided and maintained by Contractor.

C. COMMUNICATION

In the event of any unplanned incidents which disrupt normal school operations, the Contractor shall immediately contact the HISD General Manager or the HISD Issuing Authority.

D. SAFETY

Safety of HISD students shall be paramount in all of the Contractor’s activities. Every precaution shall be taken in the planning and execution of the Work to assure that student safety is not compromised. Secondarily, safety of the public, safety of HISD staff, and safety of the Contractor’s own forces shall take priority over all other functions. In this regard Contractor shall implement a comprehensive safety program. The Contractor shall coordinate their Project Safety Program and policies to meet safety standards. The Project Safety Program shall be established as set out in the Contractor’s proposal and must include all items noted below:

• Safety orientations are required for all Workers • Continuous safety inspections will be performed by personnel designated by HISD. • Safety goggles must be worn by all individuals at all times on HISD Projects • Hard hats must be worn by all individuals at all times on HISD Projects • 100% fall protection is required • A security badge system must be implemented, and badges worn by all personnel

Each Contractor Working on the Project will be required to perform his Work in strict accordance with the requirements of OSHA, this Contract and other codes and standards as they may apply. Each Contractor shall be responsible for a complete safety program governing the employees and the Work.

Each Contractor will be responsible for the security of his own stored material, trailers, Work, equipment, tools, and employees.

Any vehicles used on the site for construction must be covered by the Contractors’ and Subcontractors’ insurance policy. Parking of privately-owned vehicles will be restricted to a construction parking area located on site by the Contractor.

E. GOOD NEIGHBOR POLICY

The Contractor shall endeavor to foster and maintain a good relationship with the surrounding property next to HISDs at all times. Prior to the start of any Project, the Contractor shall contact any residents or businesses within 200 feet of the Project site, and provide them the following basic information:

• Approximate start date for the Project • The name and phone number of the Contractor’s on-site representative • The name and phone number of HISD’s construction representative

The Contractor shall keep surrounding roadways clean and free of mud and debris at all times. The Project site shall be orderly and neat. Trash, cardboard and other site debris that might blow onto surrounding property shall be cleaned up daily.

F. SCHEDULING OF WORK

1. Unless specified otherwise in the Job Order, each Job Order will include a Notice to Proceed. The first day of performance under a Job Order shall be the effective date specified therein, or in a separate Notice to Proceed, if applicable. Any preliminary Work started or materials ordered or purchased before receipt of the

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Job Order, or Notice to Proceed shall be at the risk and expense of the Contractor. The Contractor shall diligently prosecute the Work to completion within the time set forth in the Job Order and the schedule determined pursuant to Article 18 of the Job Order Contract. The period of performance includes allowance for mobilization, holidays, weekend days, inclement weather, and cleanup. Therefore, claims for delay based on these elements will not be allowed. When the Contractor considers the Work complete and ready for its intended use, the Contractor shall request HISD to inspect the Work to determine the status of completion. When HISD determines the Work to be substantially complete, HISD will issue a Certificate of Substantial Completion with a list of items to be completed or corrected prior to final payment for the Job Order. The Contractor shall proceed promptly to complete and correct items on the list.

2. Delivery of materials and equipment shall be made without interference to HISD operations and personnel.

3. Furniture and portable office equipment in the immediate Work area will be moved by the Contractor and

replaced to its original location. If the furniture and portable office equipment cannot be replaced to its original location, HISD will designate new locations.

4. The Contractor shall take all precautions to ensure that no damage will result from its operations to private or

public property. All damages shall be repaired or replaced by the Contractor at no cost to HISD.

5. The Contractor shall be responsible for providing all necessary traffic control, such as street blockages, traffic cones, flagmen, etc., as required for each Job Order at no additional cost to HISD. Proposed traffic control methods shall be submitted to HISD for final approval.

G. CONTRACTOR FIELD OFFICE

1. Subject to HISD’s prior written approval at the sole discretion of HISD and only during the continuation of this Contract, Contractor may maintain a Contractor-owned field office located on HISD property if property is not needed for other district use. Contractor shall be solely responsible and liable for all maintenance and repairs of such office as well as any liability claims attributable to the placement and operation of such facilities.

2. Telephone service for the office shall be the responsibility of the Contractor. 3. The Contractor shall be responsible for furnishing a copier, FAX machine, office furnishings and supplies, and

all other items necessary for the operation. H. HISD Furnished Utilities

Except as otherwise set forth herein, HISD shall provide at its discretion, free of charge to the Contractor, utilities and non-student toilet facilities, only if such facilities are already reasonably available at each site for Work performed under this Contract. 1. Water HISD shall furnish to the Contractor, from existing HISD facilities and without cost to the Contractor, a supply of water necessary for the performance of Work under this Contract. HISD will in no case furnish or install any required supply connections and piping for the purpose of implementing the availability of the water supply. It is the responsibility of the Contractor to determine the extent to which existing HISD water supply source is adequate for the needs of this Contract.

All taps, connections, and accessory equipment required in making the water supply source available will be accomplished by and at the expense of the Contractor. All Work in connection therewith shall be coordinated, scheduled, and performed as directed and approved by HISD. Said taps, connections, and accessory equipment shall be maintained by the Contractor in a Workmanlike manner in accordance with the rules and regulations of all applicable jurisdictions. Upon completion of each Job Order under this Contract, the removal of all taps, connections and accessories will be accomplished by and at the expense of the Contractor so as to leave the water supply source and facility in its original condition. Such removal shall also be subject to the prior approval of HISD.

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2. Electricity HISD shall furnish to the Contractor from existing HISD facilities and without cost to the Contractor, electricity necessary for the performance of Work under this Contract. HISD will, in no case, furnish or install any electrical facility or accessory for the purpose of this Contract. It is the responsibility of the Contractor to determine the extent to which existing HISD electrical facilities are adequate for the needs of this Contract.

All taps, connections, and necessary equipment required in making the electrical power available will be accomplished by and at the expense of the Contractor. All Work in connection therewith shall be coordinated, scheduled and performed as directed and approved by HISD. Said taps, connections, and accessory equipment shall be maintained by the Contractor in a Workmanlike manner in accordance with the rules and regulations of all applicable jurisdictions. Upon completion of each Job Order under this Contract, the removal of all taps, connections and accessories will be accomplished by and at the expense of the Contractor so as to leave the electrical power source and facility in its original condition. Such removal shall also be subject to the approval of HISD.

I. AS-BUILT DRAWINGS AND SHOP MANUALS The Contractor shall submit two complete sets of as-built drawings to the Issuing Authority within 30 days after each

Project acceptance. As-builts shall be submitted in paper as well as in electronic form. The Contractor shall also submit three copies of shop manuals at that time if equipment has been installed as part of the Job Order.

J. WORK BY HISD

HISD reserves the right to undertake or award additional contracts for the performance of the same or similar type Work as contemplated herein, and to do so will not breach or otherwise violate this Contract.

K. WARRANTY FOLLOW-UP

The Contractor shall designate one person for each Project as the designated Warranty Representative for the entire one-year warranty period. The Warranty Representative shall coordinate and be responsible for all warranty Work. A sample Warranty Request Form is attached as a method to organize and follow-up on warranty issues.

L. HISD’S DESIGN STANDARDS

HISD’S Design Standards can be viewed on HISD’S web site at http://www.pbk.com/HISD/HISDStandards_v2_2.pdf.

M. CLEAN-UP

Contractor shall be responsible for cleaning mud, dirt, or debris from streets, drives, or parking areas, either on the Project property or adjacent to the Project, resulting from the performance of its Work, whether due to its own employees or equipment or as a result of deliveries by suppliers.

N. QUALITY CONTROL

Contractor is aware of the Quality Control required by the Contract Documents. Contractor will provide all Quality Control and management required for his Work by the Contract Documents.

The Contractor shall employ in-place mock-ups of the Work as a quality control tool as much as possible. As each new trade begins Work on the Project, the specified tolerances and level of quality expected shall be reviewed with the Subcontractor’s foreman. The appropriate architectural and HISDs representatives shall be notified of the new trade, and afforded the opportunity to review the Work being installed.

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ATTACHMENT D

WARRANTY REQUEST FORM (A) PROJECT NAME/LOCATION REQUESTED BY: PHONE: DATE REQUESTED: HOW REQUESTED: PHONE LETTER FAX OTHER (B) DESCRIPTION OF CORRECTIVE ACTION NEEDED: CORRECTIVE ACTION NEEDS TO BE COMPLETE BY (DATE): (C) CORRECTIVE ACTION TO BE PERFORMED BY: COMPANY NAME: FAX/PHONE: CONTACT: DATE NOTIFIED: HOW NOTIFIED: PHONE LETTER COPY OF W/R OTHER (D) DESCRIBE ACTION TAKEN: DATE COMPLETE: (Subcontractor to fill out after corrective Work has been completed, then fax this completed form back to the Contractor’s office.) PREPARED BY: CORRECTIVE ACTION APPROVED BY: NAME: _______________________NAME: DATE: DATE:

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ATTACHMENT E

PREVAILING WAGE RATES

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ATTACHMENT F

JOB ORDER FORM

JOB ORDER NO: _______________

This Job Order is subject to all terms and conditions of the Master JOC Agreement (“Contract”)

between the Houston Independent School District (Owner) and Contractor. Any amendment or modification of this Job Order must be in writing and signed by both parties.

1. Agreed Work. The agreed Work shall include: ______________________________________________________________________________ ______________________________________________________________________________ The technical specifications, and/or drawings applicable to this Job Order are: ______________________________________________________________________________ ______________________________________________________________________________

2. Deadline for Performance. Job Order Contractor shall complete performance of the Work specified herein on or before _________________________________. The parties agree that the “per day” amount for Liquidated Damages, as defined in Contract, shall be ____________. The Date of Commencement is: [select one] ____ the date on which both parties duly execute this Job Order or ____ will be fixed in a Notice to Proceed issued by the Owner.

Place of Performance. Contractor shall perform the Work specified herein at the following location(s): ______________________________________________________________________________ ______________________________________________________________________________

3. Job Order Price. The parties hereby agree that the Total Price for all Work under this Job Order is $_______________________, as specified in the Job Order Price Proposal attached hereto as Exhibit 1.

4. Contractor’s Key Personnel for Job Order:

___________________________________________________________________.

5. Contractor’s Authorized Representative. Contractor’s authorized under this Job Order is:

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__________________________________.

6. Owner’s Authorized Representative. Owner’s authorized representative for acceptance of any completed Work under this Job Order is: __________________________________.

7. Bonds. Any and all statutory Payment and Performance bonds required for this Job Order

shall be furnished to HISD prior to commencement of any work. All bonds shall comply with the requirements of Chapter 2253 of the Texas Government Code.

AUTHORIZED AND ACCEPTED: CONTRACTOR/__________________________________ By: __________________________________ Date: ________________ Name: __________________________________ Title: __________________________________ Address: __________________________________ Phone: __________________________________ OWNER/HOUSTON INDEPENDENT SCHOOL DISTRICT By: __________________________________ Date: ________________ Name: __________________________________ Title: __________________________________ EXHIBIT 1: Contractor’s Job Order Price Proposal, dated: ______________

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