SAMPLE – SUBJECT TO CHANGE - Houston

SAMPLE – SUBJECT TO CHANGE

GNEHSA Sample Contract of 47

THE STATE OF TEXAS § RFP # § § ORDINANCE #____________________ COUNTY OF HARRIS § CONTRACT #_____________________

I. PARTIES

1.0 ADDRESS:

THIS AGREEMENT FOR OPERATION AND MAINTENANCE SERVICES FOR THE GREATER NORTHEAST HOUSTON SERVICE AREA (GNEHSA) WATER AND WASTEWATER UTILITIES AND FACILITIES ("Agreement") is made on the Countersignature Date between the CITY OF HOUSTON, TEXAS ("City"), a municipal corporation and home-rule city of State of Texas principally situated in Harris County, acting by and through its governing body, the City Council and , (“Contractor”), a corporation doing business in Texas, also referred to as the “Parties”.

The initial addresses of the Parties for notices and other purposes under this Agreement, which one Party may change by giving written notice to the other party, are as follows: City Contractor

Director of Houston Public Works or Designee City of Houston P.O. Box 1562 Houston, Texas 77251



The Parties agree as follows:

2.0 TABLE OF CONTENTS:

2.1 This Agreement consists of the following Sections:

TABLE OF CONTENTS

Page No.

I. PARTIES………………………………………………………………………………………………..1 1.0 ADDRESS: .......................................................................................................... 1 2.0 TABLE OF CONTENTS: ...................................................................................... 2 3.0 PARTS INCORPORATED: .................................................................................. 4 4.0 CONTROLLING PARTS: ..................................................................................... 5 5.0 DEFINITIONS: ..................................................................................................... 5 6.0 SIGNATURES: .................................................................................................... 5

II. DUTIES OF CONTRACTOR………………………………………………………………………...7 1.0 SCOPE OF WORK: ............................................................................................. 7 2.0 INDEMNITY AND RELEASE: .............................................................................. 8 3.0 INDEMNIFICATION PROCEDURES: ................................................................ 10 4.0 INSURANCE: .................................................................................................... 11 5.0 WARRANTIES: .................................................................................................. 14 6.0 LICENSES PERMITS, AND FINES: .................................................................. 15

7.0 USE OF WORK PRODUCTS:………………………………………………………..15 8.0 COMPLIANCE WITH EQUAL OPPORTUNITY ORDINANCE: .......................... 16 9.0 MWBE COMPLIANCE: ...................................................................................... 16 10.0 DRUG ABUSE DETECTION AND DETERRENCE: ........................................... 17 11.0 ENVIRONMENTAL MATTERS, WARRANTIES, REPRESENTATIONS AND

COVENANTS: ................................................................................................... 18 12.0 PRESERVATION OF CONTRACTING INFORMATION:……………………….…21 13.0 PAYMENT OF EMPLOYEES AND SUBCONTRACTORS:……………………….222

14.0 CONTRACTOR PAY OR PLAY PROGRAM: ................................................... 233 15.0 LIQUIDATED DAMAGES: ............................................................................... 233 16.0 PAYMENT AND PERFORMANCE BONDS: .................................................... 244

17.0 ANTI-BOYCOTT OF ISRAEL:………………………………………………………..25 18.0 ZERO TOLERANCE POLICY FOR HUMAN TRAFFICKING AND RELATED

ACTIVITES:…………………………………………………………………………….25

III. DUTIES OF CITY……………………………………………………………………………………266 1.0 PAYMENT TERMS: ......................................................................................... 266 2.0 TAXES: ............................................................................................................ 288 3.0 METHOD OF PAYMENT: ................................................................................ 288 4.0 METHOD OF PAYMENT - DISPUTED PAYMENTS: ....................................... 288 5.0 LIMIT OF APPROPRIATION: .......................................................................... 288 6.0 CHANGES: ........................................................................................................ 29

IV. TERM AND TERMINATION………………………………………………………………………311 1.0 CONTRACT TERM: ......................................................................................... 311 2.0 NOTICE TO PROCEED: .................................................................................. 311



3.0 RENEWALS: ................................................................................................... 311 4.0 TIME EXTENSIONS: ....................................................................................... 322 5.0 TERMINATION FOR CONVENIENCE BY THE CITY: ..................................... 322 6.0 TERMINATION FOR CAUSE BY CITY: ........................................................... 333 7.0 TERMINATION FOR CAUSE BY CONTRACTOR: .......................................... 344 8.0 TERMINATION RELATED TO CHANGE OF LAW: ......................................... 344

V. MISCELLANEOUS…………………………………………………………………………………344 1.0 INDEPENDENT CONTRACTOR: .................................................................... 344 2.0 FORCE MAJEURE: ......................................................................................... 345 3.0 SEVERABILITY: .............................................................................................. 366 4.0 ENTIRE AGREEMENT………………………………………………………………..36 5.0 WRITTEN AMENDMENT: ................................................................................. 36 6.0 APPLICABLE LAWS: ......................................................................................... 36 7.0 NOTICES: .......................................................................................................... 37 8.0 NON-WAIVER: .................................................................................................. 37 9.0 INSPECTIONS, AUDITS AND OWNERSHIP AND ACCESS TO MATERIALS

AND DOCUMENT RETENTION: ...................................................................... 37 10.0 ENFORCEMENT: .............................................................................................. 39 11.0 AMBIGUITIES:................................................................................................... 39 12.0 SURVIVAL: ........................................................................................................ 39 13.0 PARTIES IN INTEREST: ................................................................................... 39 14.0 SUCCESSORS AND ASSIGNS: ....................................................................... 40 15.0 BUSINESS STRUCTURE AND ASSIGNMENTS: .............................................. 40 16.0 REMEDIES CUMULATIVE: ............................................................................... 40 17.0 CONTRACTOR DEBT: ...................................................................................... 40 18.0 REFERENCE TO CONTRACTOR INCLUDES SUBCONTRACTORS AND

OTHERS PERFORMING WORK:……………………………………………………41

EXHIBITS

A. DEFINITIONS

B. SCOPE OF WORK

B-1. STAFFING PLAN

C. EQUAL EMPLOYMENT OPPORTUNITY

D. MWBE SUBCONTRACT TERMS

E. DRUG POLICY COMPLIANCE AGREEMENT

F. LIST OF SAFETY IMPACT POSITIONS

G. DRUG POLICY COMPLIANCE DECLARATION

H. FEES AND COSTS

I. CONTRACTOR PAY OR PLAY

J. FAIR CAMPAIGN ORDINANCE

K. OWNERSHIP INFORMATION FORM

L. CONFLICT OF INTEREST QUESTIONNAIRE

M. PERFORMANCE BOND



N. PAYMENT BOND

O. MAINTENANCE BOND

P. CERTIFICATE OF INSURANCE

APPENDICES (As set out in the City of Houston Request for Proposals stated as ______,

dated and on file in the office of the Director and incorporated into

this agreement by reference as if attached).

1. APPENDIX A DISCHARGE PERMIT AND PROCESS DIAGRAM– Kingwood Central

WWTP

2. APPENDIX B DISCHARGE PERMIT AND PROCESS DIAGRAM—Forest Cove

WWTP

3. APPENDIX C DISCHARGE PERMIT AND PROCESS DIAGRAM—Kingwood West

WWTP

4. APPENDIX D DISCHARGE PERMIT AND PROCESS DIAGRAM—Cedar Bayou

WWTP

5. APPENDIX E DISCHARGE PERMIT AND PROCESS DIAGRAM—West lake

Houston WWTP

6. APPENDIX F SAMPLE VALVE INSPECTION FORM

7. APPENDIX G FIRE HYDRANT PREVENTIVE MAINTENANCE PROGRAM

8. APPENDIX H HOUSTON WATER —FIELD MANUAL

9. APPENDIX I SAMPLE—FLUSHING LOG

10. APPENDIX J SAMPLE—TOTAL MONTHLY WATER PRODUCTION CHART

11. APPENDIX K SAMPLE—TOTAL DAILY WELL WATER PRODUCTION CHART

12. APPENDIX L HOUSTON WATER - SANITARY SEWER OVERFLOW RESPONSE

PLAN (SSORP)

13. APPENDIX M GREATER NORTHEAST HOUSTON SERVICE AREA WATER AND

WASTEWATER UTILITIES AND FACILITIES MAP

14. APPENDIX N WATER MONITORING PLANS FOR UTILITY DISTRICT 5, DISTRICT

73, BELLEAU WOODS, DISTRICT 82, AND LAKE HOUSTON PARKS PUBLIC

WATER SYSTEMS

15. APPENDIX O CONSENT DECREE

3.0 PARTS INCORPORATED:

3.1 The above described Sections, Exhibits and Appendices are incorporated into this Agreement.



4.0 CONTROLLING PARTS:

4.1 If a conflict among the Sections, Appendices or Exhibits arises the Exhibits control over the Sections and the Appendices.

5.0 DEFINITIONS:

5.1 Certain terms used in this Agreement are defined in Exhibit "A". 6.0 SIGNATURES:

6.1 IN WITNESS WHEREOF, the Parties have executed this Agreement in multiple

copies, each of which is an original. Each person signing this Agreement represents

and warrants that he or she is duly authorized and has legal capacity to execute and

deliver this Agreement. Each Party represents and warrants to the other that the

execution and delivery of this Agreement and the performance of such Party’s

obligations hereunder have been duly authorized, and that the Agreement is a valid

and legal agreement binding on such Party and enforceable in accordance with its

terms. The Parties hereby agree that each Party may sign and deliver this Agreement

electronically or by electronic means and that an electronic transmittal of a signature,

including but not limited to, a scanned signature page, will be as good, binding, and

effective as an original signature.

[NAME OF CONTRACTOR]

By: ______________________________ Name: Title: ATTEST/SEAL (if a corporation) WITNESS (if not a corporation)

By:_____________________________ Name: Title:



CITY OF HOUSTON ATTEST/SEAL: CITY OF HOUSTON, TEXAS

Signed by: ______________________________ _______________________________ City Secretary Mayor APPROVED: COUNTERSIGNED BY: ________________________________ ________________________________ Director, Houston Public Works City Controller APPROVED AS TO FORM: DATE COUNTERSIGNED: ____________________________ ________________________________ Assistant City Attorney L.D. File No.



II. DUTIES OF CONTRACTOR

1.0 SCOPE OF WORK:

1.1 In consideration of the payments specified in this Agreement, Contractor shall perform

all work under this Agreement, the Appendices and Exhibits, including but not limited

to the Scope of Work set forth in Exhibit “B”, including all labor, material, equipment,

transportation and supervision necessary to perform the work under this Agreement..

1.2 The Scope of Work in Exhibit “B” consists of Section 1.0 - Basic Services necessary

to operate, maintain and secure the GNEHSA Water and Wastewater Utilities and

Facilities, and Section 2.0 – Consent Decree Obligations. All services performed

under Section 1.0 of the Exhibit “B” Scope of Work must also comply with the

provisions of the Consent Decree attached as Appendix O, including the Consent

Decree Obligations set forth in Section 2.0 of the Scope of Work. This Agreement is

conditioned upon Contractor’s performance of the Agreement and Scope of Work in

conformity with the terms of the Consent Decree.

1.3 If Contractor believes that the GNEHSA requires services or repairs not listed in

Exhibit “B”, before performing such services, Contractor shall (i) immediately request

a task authorization letter under Article III, Section 1 or approval of a Change Order

under Article III, Section 6 of this Agreement, and (ii) comply with the City’s

Procurement and Design requirements and the provisions of this Agreement for

Additional Services. Contractor shall wait to obtain official prior authorization for its

request before performing such repair or services unless Contractor reasonably

determines delay will cause an identifiable risk to public health or safety. The City

reserves the right to complete non-emergency services or repairs not listed in Exhibit

“B” through its own means in lieu of authorizing an Additional Service. The City will

not compensate the Contractor for labor and equipment related to additional service

work if the additional service is performed by employees and equipment provided as

part of Basic Services. Payment for overtime labor required to complete the additional

service will be considered on a case by case basis. The City will compensate the

Contractor for labor, equipment and materials required for any repairs, damages or

cleanup, which in the sole opinion of the Director, are wholly caused by a third party.



2.0 INDEMNITY AND RELEASE:

2.1 RELEASE

CONTRACTOR AGREES TO AND SHALL RELEASE THE CITY, ITS AGENTS, EMPLOYEES, OFFICERS, AND LEGAL REPRESENTATIVES (COLLECTIVELY THE “CITY”) FROM ALL LIABILITY FOR INJURY, DEATH, DAMAGE, OR LOSS TO PERSONS OR PROPERTY SUSTAINED IN CONNECTION WITH OR INCIDENTAL TO PERFORMANCE UNDER THIS AGREEMENT, EVEN IF THE INJURY, DEATH, DAMAGE, OR LOSS IS CAUSED BY THE CITY’S SOLE OR CONCURRENT NEGLIGENCE AND/OR THE CITY’S STRICT PRODUCTS LIABILITY OR STRICT STATUTORY LIABILITY. CONTRACTOR HEREBY COVENANTS AND AGREES NOT TO SUE THE CITY FOR ANY CLAIMS, DEMANDS, OR CAUSES OF ACTION DIRECTLY OR INDIRECTLY RELATED TO ITS RELEASE UNDER THIS SECTION. FOR THE AVOIDANCE OF DOUBT, THIS COVENANT NOT TO SUE DOES NOT APPLY TO CLAIMS FOR BREACH OF THIS AGREEMENT.

2.2 INDEMNIFICATION:

CONTRACTOR AGREES TO AND SHALL PROMPTLY AND AT ALL TIMES DEFEND, INDEMNIFY, AND HOLD THE CITY, ITS AGENTS, EMPLOYEES, OFFICERS, AND LEGAL REPRESENTATIVES (COLLECTIVELY "THE CITY") HARMLESS FOR, FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, COSTS, CLAIMS, CAUSES OF ACTION, LIABILITIES, AND “ENVIRONMENTAL LIABILITIES” (INCLUDING STRICT LIABILITIES UNDER LAWS OR STATUTES, INCLUDING CERCLA OR SIMILAR LAWS ADDRESSING ENVIRONMENTAL MATTERS), FINES, PENALTIES (INCLUDING STIPULATED PENALTIES), EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY’S FEES, COURT COSTS, AND ALL OTHER LEGAL OR DEFENSE COSTS AND INTEREST) JUDGMENTS, LIENS, SUITS, ENFORCEMENT ACTIONS, DEMANDS, INJURIES (INCLUDING WITHOUT LIMITATION, DEATH TO PERSONS WHETHER THEY BE CONTRACTOR’S OR CITY’S EMPLOYEES OR OTHERS), ACTUAL OR THREATENED DAMAGE TO THE ENVIRONMENT OR



PROPERTY, (ALL OF THE ABOVE COLLECTIVELY REFERRED TO AS “LOSSES”) CAUSED BY, ARISING OUT OF OR RESULTING FROM CONTRACTOR’S (AND/OR ITS AGENTS’, EMPLOYEES’, OFFICERS’, DIRECTORS’, CONTRACTORS’, SUBCONTRACTORS’, VENDORS OR ANY OTHER PERSONS PERFORMING ANY WORK FOR CONTRACTOR OR INCIDENTAL TO PERFORMANCE OF ANY SUCH WORK EITHER DIRECTLY OR INDIRECTLY): (I) ACTUAL OR ALLEGED NEGLIGENCE, GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR WRONGFUL ACTS OR OMISSIONS, (II) FAILURE TO COMPLY WITH THE TERMS OF THIS AGREEMENT, INCLUDING FAILURE TO COMPLY WITH THE CONSENT DECREE AND CONSENT DECREE OBLIGATIONS, (III) BREACH OR THREATENED BREACH OF THIS AGREEMENT, (IV) BREACH OF ANY COVENANT, REPRESENTATION OR WARRANTY IN THE AGREEMENT, AND/OR (IV) “RELEASE” OF “HAZARDOUS MATERIALS” AS DEFINED HEREIN.

2.2.1 THE INDEMNIFICATION IN SECTION 2.2 ABOVE SHALL APPLY TO THE

CITY’S AND CONTRACTOR’S ACTUAL OR ALLEGED CONCURRENT NEGLIGENCE, WHETHER CONTRACTOR IS IMMUNE FROM LIABILITY OR NOT; AND

2.2.2 THE INDEMNIFICATION IN SECTION 2.2 ABOVE SHALL APPLY TO THE

CITY’S AND CONTRACTOR’S ACTUAL OR ALLEGED STRICT PRODUCTS LIABILITY OR STRICT STATUTORY LIABILITY, WHETHER CONTRACTOR IS IMMUNE FROM LIABILITY OR NOT.

2.2.3 THE INDEMNIFICATION AND RELEASE PROVISIONS IN SECTION 2.0 ABOVE SHALL SURVIVE TERMINATION OF THIS AGREEMENT, HOWSOEVER BROUGHT ABOUT. CONTRACTOR’S INDEMNITY OBLIGATIONS AND RELEASE SHALL NOT BE LIMITED BY CONTRACT PRICE OR ANY PROVISION OR LIMITS OF INSURANCE IN THIS AGREEMENT OR OTHERWISE.

2.3 INDEMNIFICATION – SUBCONTRACTOR’S INDEMNITY:

CONTRACTOR SHALL REQUIRE ALL OF ITS SUBCONTRACTORS (AND THEIR



SUBCONTRACTORS) TO RELEASE AND INDEMNIFY THE CITY TO THE SAME EXTENT AND IN SUBSTANTIALLY THE SAME FORM AS ITS RELEASE AND INDEMNITY TO THE CITY.

3.0 INDEMNIFICATION PROCEDURES:

3.1 Notice of Claims. If the City or Contractor receives notice of any claim or

circumstances which could give rise to an indemnified loss or obligation, the receiving

party shall give written notice to the other party within 10 days. The notice must

include the following:

3.1.1 a description of the indemnification event in reasonable detail,

3.1.2 the basis on which indemnification may be due, and

3.1.3 the anticipated amount of the indemnified loss.

3.2 This notice does not stop or prevent the City from later asserting a different basis for

indemnification or a different amount of indemnified loss than that indicated in the

initial notice. If the City does not provide this notice within the 10-day period, it does

not waive any right to indemnification except to the extent that Contractor is

prejudiced, suffers loss, or incurs expense because of the delay.

3.3 Defense of Claims

3.3.1 Assumption of Defense. Contractor may assume the defense of the claim at

its own expense with counsel chosen by it that is reasonably satisfactory to

the City. Contractor shall then control the defense and any negotiations to

settle the claim. Within 30 days after receiving written notice of the

indemnification request, Contractor must advise the City as to whether or not

it will defend the claim. If Contractor does not assume the defense, the City

shall assume and control the defense, and all defense expenses constitute an

indemnification loss.

3.3.2 Continued Participation. If Contractor elects to defend the claim, the City may



retain separate counsel to participate in (but not control) the defense and to

participate in (but not control) any settlement negotiations. Contractor may

settle the claim without the consent or agreement of the City, unless it (i) would

result in injunctive relief or other equitable remedies or otherwise require the

City to comply with restrictions or limitations that adversely affect the City, (ii)

would require the City to pay amounts that Contractor does not fund in full, (iii)

would not result in the City’s full and complete release from all liability to the

plaintiffs or claimants who are parties to or otherwise bound by the settlement.

4.0 INSURANCE:

4.1 Contractor shall maintain in effect certain insurance coverage and shall furnish the

Director with certificates of insurance, in duplicate form along with an Affidavit from

the Contractor confirming that the Certificates accurately reflect the insurance

maintained before beginning its performance under this Agreement. The City shall be

entitled, upon request and without expense, to receive copies of all policies and

endorsements required to be maintained pursuant to this Agreement. All policies

except Professional Liability and Workers’ Compensation must name the City as an

additional insured. The issuer of any policy (1) shall have a Certificate of Authority to

transact insurance business in Texas or (2) shall be an eligible non-admitted insurer

in the State of Texas and have a Best's rating of at least B+ and a Best's Financial

Size Category of Class VI or better, according to the most current edition Best's Key

Rating Guide. Contractor shall maintain the following insurance coverages in the

following amounts:



(1) Risks and Limits of Liability. Contractor shall maintain the following coverages and limits of liability:

COVERAGE LIMIT OF LIABILITY

Workers' Compensation Statutory for Workers' Compensation

Employer's Liability

• Bodily Injury by Accident $500,000 (each accident)

• Bodily Injury by Disease $500,000 (policy limit)

• Bodily Injury by Disease $500,000 (each employee)

Commercial General Liability: Bodily and Personal Injury; Products and Completed Operations Coverage

Bodily Injury and Property Damage, Combined Limits of $1,000,000 each Occurrence, and $2,000,000 aggregate

Automobile Liability $1,000,000 combined single limit for (1) Any Auto or (2) All Owned, Hired, and Non-Owned Autos

Professional Liability Coverage $1,000,000 per occurrence; $2,000,000 aggregate

Excess Liability Coverage, or Umbrella Coverage, for Commercial General Liability and Automobile Liability

$1,000,000.00

Aggregate Limits are per 12-month policy period unless otherwise indicated.

(2) Form of Policies. The Director may approve the form of the insurance policies,

but nothing the Director does or fails to do relieves Contractor from its duties to

provide the required coverage under this Contract. The Director's actions or inactions

do not waive the City's rights under this Contract.

4.2 Each policy, except Worker's Compensation and Professional Liability (if any), must

contain an endorsement that the policy is primary to any other insurance available to

the Additional Insured with respect to claims arising under this Agreement.

4.3 All certificates of insurance submitted by Contractor shall be accompanied by

endorsements for additional insured coverage in favor of the City for Commercial

General Liability and Automobile Liability policies; and waivers of subrogation in favor



of the City for Commercial General Liability, Automobile Liability, and Worker's

Compensation/Employers' Liability policies.

4.4 All insurance policies must require on their face, or by endorsement, that the

insurance carrier waives any rights of subrogation against the City, its officers, agents,

or employees. Contractor shall maintain the required insurance coverage in full force

and effect during the term of the Agreement and shall not cancel or allow to be,

materially changed or non-renewed. All policies and certificates providing coverage

hereunder shall contain the following express provisions: “This is to certify that the

policies of insurance described herein have been issued to the additional insureds for

whom this certificate is executed,and are in force at this time.” In the event of notice

of cancellation or non-renewal in coverage, Contractor shall provide thirty (30) days

prior written notice to City. Within the 30-day period, Contractor shall provide other

suitable policies in lieu of those about to be canceled, materially changed, or non-

renewed so as to maintain in effect the required coverage. If Contractor does not

comply with this requirement, the Director, at his or sole discretion, may:

4.4.1 immediately suspend Contractor from any further performance under this

Agreement and begin procedures to terminate for default, or

4.4.2 undertake any other remedies allowed by law to provide protection as may be

necessary and recover costs from Contractor.

4.5 Subcontractors:

Contractor shall require all subcontractors to carry insurance naming the City as an

additional insured and meeting all the above requirements except amount. The

amount must be commensurate with the amount of the subcontract, but in no case

less than $500,000 per occurrence. Contractor shall provide copies of insurance

certificates to the Director. In the event a subcontractor is unable to furnish insurance

in the limits required under this Agreement, the Contractor shall endorse the

subcontractor as an Additional Insured on their policies excluding Workers'

Compensation and Employer's Liability.

4.6 Other Insurance

If requested by the Director, Contractor shall furnish adequate evidence of Social



Security and Unemployment Compensation Insurance, to the extent applicable to

Contractor’s operations under this contract.

5.0 WARRANTIES:

5.1 Contractor represents, covenants and warrants that it shall perform all work required

under the Agreement and Scope of Work in a good and workmanlike manner, in

accordance with industry standards and using sound engineering prevailing in Harris

County, Texas for work of this kind. Contractor shall perform all work using trained

and skilled persons having substantial experience performing the work required under

this Agreement.

5.2 With respect to any parts and goods furnished by it, Contractor represents, covenants

and warrants:

5.2.1 that all items are free of defects in title, material, and workmanship,

5.2.2 that each item meets or exceeds the manufacturer’s specifications and

requirements for the equipment, structure, or other improvement in which the

item is installed,

5.2.3 that each replacement item is new in accordance with original equipment

manufacturer's specifications, and of a quality at least as good as the quality

of the item which it replaces (when the replaced item was new), and

5.2.4 that no item recommended or introduced by Contractor or the use of such item

infringes any patent, copyright, or proprietary right.

5.3 Contractor represents, covenants and warrants that it: (1) it has read and understands

the Consent Decree and Consent Decree Obligations, (2) will comply with all

provisions of the Consent Decree, including the Consent Decree Obligations, that

apply to the Scope of Work in Exhibit “B”, (3) will perform the Scope of Work in

conformity with the requirements of the Consent Decree, including the Consent

Decree Obligations, and (4) that failure to comply with the foregoing can result in the

imposition of penalties and/or stipulated penalties or remedies upon the City, for which



Contractor has agreed to indemnify the City.

5.4 Contractor represents, covenants and warrants that it will comply with all Applicable

Laws, (defined in Exhibit “A” and including Environmental Laws) and Permits (as

defined in Exhibit “A”) and that it is familiar with, knowledgeable about and will comply

with all Applicable Laws, regulations, ordinances, consent decrees, codes, standards,

Permits and Licenses to the extent necessary to perform the Scope of Work in Exhibit

“B”.

5.5 Contractor represents, covenants and warrants that it shall immediately notify the City

regarding any event, condition or delay that threatens to adversely affect its ability to

comply with the Consent Decree and/or Consent Decree Obligations.

5.6 Contractor represents, covenants and warrants that it will provide a copy of the

Consent Decree to any subcontractor or other person performing work on

Contractor’s behalf and ensure their compliance with the terms of the Consent Decree

and the Consent Decree obligations.

5.7 Contractor represents, covenants and warrants that upon receipt of any request for

documents or information from the City concerning or related to this Agreement and/or

the Scope of Work (including the Consent Decree and Consent Decree obligations),

Contractor shall promptly provide all information requested to the City at its own

expense without delay.

6.0 LICENSES PERMITS, AND FINES:

6.1 City shall obtain, with Contractors assistance, and pay for all licenses, permits,

violations.

6.2 Contractor shall promptly reimburse the City for all Losses, fines, penalties, and other

regulatory charges required by any statute, ordinance, rule, or regulation resulting

from Contractor’s performance under this Agreement. The reimbursement shall be

deducted from the monthly payment to the Contractor.

7.0 USE OF WORK PRODUCTS:



7.1 The City may use all notes, plans, computations, databases, tabulations, exhibits,

photographs, reports, underlying data and other work products (collectively, the

Documents) that Contractor prepares or obtains under this Agreement.

7.2 Contractor warrants that it owns the copyright to the Documents.

7.3 Contractor shall deliver the original Documents to the Director on request. Within five

working days after this Agreement terminates, Contractor shall deliver to the Director

the original Documents, and all other files and materials Contractor produces or

gathers during its performance under this Agreement.

8.0 COMPLIANCE WITH EQUAL OPPORTUNITY ORDINANCE:

8.1 Contractor shall comply with the City's Equal Employment Opportunity Ordinance as

set out in Exhibit "C."

9.0 MWBE COMPLIANCE:

9.1 Contractor shall comply with the City's Minority and Women Business Enterprise

("MWBE") programs as set out in Chapter 15, Article V of the City of Houston Code

of Ordinances. Contractor shall make good faith efforts to award subcontracts or

supply agreements in at least 14% of the value of this Agreement to MWBEs.

Contractor acknowledges that it has reviewed the requirements for good faith efforts

on file with the City’s Office of Business Opportunity and will comply with them.

9.2 Contractor shall require written subcontracts with all MWBE subcontractors and shall

submit all disputes with MWBEs to mediation in Houston, Texas if requested do so

by the Office of Business Opportunity Director. MWBE subcontracts must contain the

terms set out in Exhibit "D." If Contractor is an individual person (as distinguished

from a corporation, partnership, or other legal entity), and the amount of the

subcontract is $50,000 or less, the subcontract must also be signed by the attorneys

of the respective parties.



10.0 DRUG ABUSE DETECTION AND DETERRENCE:

10.1 It is the policy of the City to achieve a drug-free workforce and workplace. The

manufacture, distribution, dispensation, possession, sale, or use of illegal drugs or

alcohol by contractors while on City Premises is prohibited. Contractor shall comply

with all the requirements and procedures set forth in the Mayor's Drug Abuse

Detection and Deterrence Procedures for Contractors, Executive Order No. 1-31

("Executive Order"), which is incorporated into this Agreement and is on file in the City

Secretary’s Office.

10.2 Before the City signs this Agreement, Contractor shall file with the Contract

Compliance Officer for Drug Testing ("CCODT"):

10.2.1 a copy of its drug-free workplace policy,

10.2.2 the Drug Policy Compliance Agreement substantially in the form set forth in

Exhibit "E," together with a written designation of all safety impact positions

and,

10.2.3 if applicable, the List of Safety Impact Positions, substantially in the form set

forth in Exhibit "F."

10.3 If Contractor files a written designation of safety impact positions with its Drug Policy

Compliance Agreement, it also shall file every 6 months during the performance of

this Agreement or on completion of this Agreement if performance is less than 6

months, a Drug Policy Compliance Declaration in a form substantially similar to

Exhibit "G.” Contractor shall submit the Drug Policy Compliance Declaration to the

CCODT within 30 days of the expiration of each 6-month period of performance and

within 30 days of completion of this Agreement. The first 6-month period begins to

run on the date the City issues its Notice to Proceed or if no Notice to Proceed is

issued, on the first day Contractor begins work under this Agreement.



10.4 Contractor also shall file updated designations of safety impact positions with the

CCODT if additional safety impact positions are added to Contractor's employee work

force.

10.5 Contractor shall require that its subcontractors comply with the Executive Order, and

Contractor shall secure and maintain the required documents for City inspection.

11.0 ENVIRONMENTAL MATTERS, WARRANTIES, REPRESENTATIONS AND

COVENANTS:

In addition to the General Warranties, Representations and Covenants set forth in Section

5.0 herein, Contractor warrants, represents and covenants that it will also comply with the

following requirements:

11.1 Compliance with Environmental Laws. Contractor shall comply with all

Environmental Laws (as defined in Exhibit “A”), and will remain in compliance with all

applicable limitations, restrictions, conditions, standards, prohibitions, obligations and

requirements of the Environmental Laws. Contractor shall promptly reimburse the City

for any fines or penalties levied against the City. However, Contractor shall not be

responsible for fines and penalties levied against the City when same are due to

causes beyond Contractor’s control, including, without limitation, receipt of influent

that exceeds the design capacity of the Facilities, failures arising from the City’s

refusal to implement and approve capital improvements recommended by Contractor,

and events of Force Majeure.

11.2 Compliance with Permits. Contractor will comply with all Permits (as defined in

Exhibit “A”) and licenses, approvals, permissions and authorizations and will remain

in compliance with all applicable limitations, restrictions, conditions, standards,

prohibitions, obligations and requirements of the Permits.

11.3 Licenses. Contractor shall obtain and comply with all licenses, authorizations, etc.

needed to undertake the Scope of Work;

11.4. NOTIFICATION OF PENDING OR THREATENED CLAIM OR ACTION. Contractor

shall immediately notify the City if it becomes aware of any pending or threatened



governmental or third party action or claim relating to: (i) the Scope of Work in Exhibit

“B”, (ii) the status of any Permits or Licenses related to the Scope of Work in Exhibit

“B”, (iii) a violation or alleged violation of Applicable Laws, including Environmental

Laws, (iv) Environmental Liabilities, (v) the Environment, (v) Hazardous Materials or

(vi) Contamination. Contractor will also promptly provide to City copies of all

documents and information relating to any such pending or threatened action or claim.

11.5 Hazardous Materials. Contractor shall not possess, use, generate, Release, store,

or transport any Hazardous Materials (defined in Exhibit “A”) on, under, in, above, to,

or from the site except in strict compliance with the Environmental Laws. Contractor

shall not deposit Hazardous Materials, including but not limited to oil, gasoline,

grease, lubricants or any ignitable or hazardous liquids, materials, or other substances in the City's storm sewer system or sanitary sewer system or elsewhere

on City Property in violation of the Environmental Laws. Contractor warrants that each

and every chemical substance constituting or contained in the products sold or

otherwise transferred to the City under this Contract is in compliance with the Toxic

Substances Control Act. Contractor shall furnish Material Safety Data Sheets as

required and shall promptly furnish revisions or supplements as they become

available.

11.6 Release Reporting, Non-compliance with Environmental Laws and Notifications/Responses.

11.6.1 Contractor will notify City immediately, but in no event later than 24 hours, of

any Release of Hazardous Materials or upon learning or suspecting of any

actual or potential non-compliance with or violation of Environmental Laws.

Contractor will also promptly provide to City copies of all documents and

information relating to any Release of Hazardous Materials or actual or

potential non-compliance with or violation of Environmental Laws.

11.6.2 In the event of a Release of any Hazardous Materials, Contractor must: (1)

immediately stop the Release and cease any activities which may be resulting

in such Release, (2) immediately notify the City of the date, time and nature

of the Release, including but not limited to, a description of the Hazardous

Materials Released, and (3) coordinate with the City regarding remediation



and cleanup. If the initial notification to the City is not in writing, as soon as

possible but no later than within 24 hours of the Release, Contractor will

provide the City with a written explanation of the details of the Release.

11.6.3 Contractor shall promptly coordinate with the City regarding any release

reporting to other Government Agencies that may be required by

Environmental Laws so that the City can instruct Contractor on whether the

City will make any required notifications or delegate such notifications to

Contractor. To the extent notifications are delegated to Contractor, any written

notifications made by Contractor shall first be approved by the City, except in

emergency situations where time is of the essence and precludes the

opportunity to coordinate first with the City.

11.6.4 Other Information to City. Contractor shall immediately provide to City

copies of all documents, notices, orders, correspondence received from any

Governmental Authority relating to Hazardous Materials, Environmental Laws,

the Environment or Contamination. Contractor shall coordinate any response

to communications received from a Governmental Authority so that the City

can instruct Contractor on whether the City will make the response or delegate

such response to Contractor. To the extent Contractor is delegated to make

any response, Contractor shall not make any response that is not first

approved by the City.

11.7 In the event that Contractor demonstrates to the City that changes in Environmental

Law significantly increase Contractor’s cost of performance hereunder, Contractor

may request approval of a Change Order in accordance with Article III, Section 6.

Requested Change Orders shall be approved in accordance with the terms of this

Agreement and compliance with Applicable Laws. If a Change Order is approved,

then the Parties shall negotiate in good faith to reach a mutually agreeable Change

Order to the extent possible. If a mutually agreeable Change Order cannot be

negotiated, either Party may terminate this Agreement as provided in Article IV,

Section 8.1.

11.8 The Contractor will be responsible for:

11.8.1 Public notifications except boil water notifications;



11.8.2 Timely data delivery to the City for the City’s preparation and submission of

wastewater effluent discharge monitoring reports;

11.8.3 Preparation of data required for 30 TAC Chapter 210 reclaimed water usage

monthly effluent reports;

11.8.4 TCEQ resampling and corrective actions, reports and paperwork;

11.8.5 Operation, maintenance, and recordkeeping as required by applicable TPDES

permits;

11.8.6 Accurate tracking and reporting of large volume SSOs per TCEQ guidelines;

and

11.8.7 Monitoring and Operation of the system within Harris-Galveston Subsidence

District and Lone Star Groundwater Conservation District permit pumpage

limits and preparation of any required pumpage or water level reports.

12.0 PRESERVATION OF CONTRACTING INFORMATION

12.1 The requirements of Subchapter J, Chapter 552, Texas Government Code, may apply

to this Contract and the Contractor agrees that this Contract can be terminated if the

Contractor knowingly or intentionally fails to comply with a requirement of that

subchapter. If the requirements of Subchapter J, Chapter 552, Texas Government

Code, apply to this Contract, then for the duration of this Contract (including the initial

term, any renewal terms, and any extensions), Contractor shall preserve all

Contracting Information, as defined by Section 552.003 of the Texas Government

Code, related to this Contract as provided by the records retention requirements

applicable to the City pursuant to federal or state law or regulation, city ordinance or

city policy, which record retention requirements include but are not limited to those

set forth in Chapters 201 and 205 of the Texas Local Government Code and Texas

Administrative Code Title 13, Chapter 7. Within five business days after receiving a

request from the Director, Contractor shall provide any Contracting Information

related to this Contract that is in the custody or possession of Contractor. Upon the

expiration or termination of this Contract, Contractor shall, at the Director’s election,

either (a) provide, at no cost to the City, all Contracting Information related to this



Contract that is in the custody or possession of Contractor, or (b) preserve the

Contracting Information related to this Contract as provided by the records retention

requirements applicable to the City pursuant to federal or state law or regulation, city

ordinance or city policy.

12.2 If Contractor fails to comply with any one or more of the requirements of this Section,

Preservation of Contracting Information, or Subchapter J, Chapter 552, Texas

Government Code, then, in accordance with and pursuant to the processes and

procedures set forth in Sections 552.373 and 552.374 of the Texas Government

Code, the Director shall provide notice to the Contractor and may terminate this

Contract. To effect final termination, the Director must notify Contractor in writing with

a copy of the notice to the CPO. After receiving the notice, Contractor shall, unless

the notice directs otherwise, immediately discontinue all services under this Contract,

and promptly cancel all orders or subcontracts chargeable to this Contract.

13.0 PAYMENT OF EMPLOYEES AND SUBCONTRACTORS:

13.1 Contractor shall make timely payments in accordance with Applicable Laws to all

persons and entities supplying labor, materials or equipment for the performance of

this Agreement including but not limited to Contractor’s employees, subcontractors

and others employed by Contractor to perform the work under this Agreement.

13.2 Failure of Contractor to pay its employees and subcontractors as required by law shall

constitute a default under this contract for which the Contractor and its surety shall be

liable on Contractor’s performance bond if Contractor fails to cure the default as

provided under this Agreement.

13.3 Contractor shall defend and indemnify the City from any Losses, claims or liability

arising out of Contractors failure to pay its employees, subcontractors, agents or any

other persons employed by Contractor to perform work under this Agreement as

required by this Agreement and under Applicable Laws. Contractor shall submit

disputes relating to payment of M/WBE subcontractors to arbitration in the same

manner as any other disputes under the M/WBE subcontract.



14.0 CONTRACTOR PAY OR PLAY PROGRAM:

14.1 The requirement and terms of the City of Houston Pay or Play Policy, as set out in

Executive Order 1-7, are incorporated into this Agreement for all purposes. Contractor

has reviewed Executive Order 1-7 and shall comply with its terms and conditions as

they are set out at the time of City Council approval of this Agreement. Exhibit “I”.

14.2 The Pay or Play Program for various departments will be administered by the City of

Houston Office of Business Opportunity’s designee and for a Department specific

contract; the Department’s designated contract administrator will administer the Pay

or Play Program.

15.0 LIQUIDATED DAMAGES:

15.1 Contactor’s failure to perform any term of this Agreement, including Exhibits and

Appendices, will cause the City to suffer harm and may be deemed a material breach

of this Agreement. In addition, any violation of any term or condition of this

Agreement, or of any drinking water or treated effluent standard, which the Director

finds significant and substantially related to Contractor’s performance, shall be

subject to a Service Fee Adjustment at the Director’s sole discretion. Contractor

understands, acknowledges and agrees that the City is not obligated to impose any

assessment or Service Fee Adjustment under this Section and may elect to proceed

with default procedures outlined in Article IV, Section 6.0 below, as well as undertake

any other remedies available under this Agreement and pursuant to Applicable Laws.

If the Director elects to pursue a Service Fee Adjustment as a liquidated damage,

the Director may pursue this in the form of a Credit due back to the City from the Fixed

Monthly Service Fee after the City has provided written notice of each violation for

which the Contractor may receive a Service Fee Adjustment and provided Contractor

five days during which time Contractor may cure such violations and avoid any

Service Fee Adjustment. Unless otherwise stated in this Agreement, Service Fee

Adjustments shall be in the amount of $750.00 per violation, per day, not to exceed a

total daily amount of $10,000 or an annual amount of $250,000. If the City chooses

to impose a liquidated damage assessment against the Contractor pursuant to

Section 15.1 hereof, such individual assessment shall constitute the City’s exclusive

remedy hereunder and the City shall not simultaneously declare that specific event



giving rise to such assessment as a default under the terms of this Contract. Provided

however, Contractor acknowledges the City is not obligated to impose any

assessment under this Section and may elect to proceed with default procedures

outlined in Article IV, Section 6.0 below.

16.0 PAYMENT AND PERFORMANCE BONDS:

16.1 Contractor shall provide Bonds on the City's standard forms (attached as Exhibits M,

N, and O) covering faithful performance of the Agreement and payment of obligations

in conformance with the requirement in Chapter 2253 of the Texas Government Code,

regardless of the applicability of that Chapter. Each Bond must be for 100 percent of

the current year’s portion of Original Contract Price and in accordance with conditions

stated on standard City Performance and Payment Bond and Statutory Payment

Bond forms. Contractor shall amend the Bonds each year to adjust the amount of the

Bonds, but the Bonds shall cover the entire contract period. Bonds may be obtained

from Contractor's usual source and cost for the Bonds are included in Contract Price.

16.2 A Bond that is given or tendered to the City pursuant to the Agreement must be

executed by a surety company that is authorized and admitted to write surety Bonds

in the State of Texas. If a Bond is given or tendered to the City pursuant to the

Agreement in an amount greater than 10 percent of Surety’s capital and surplus,

Surety shall provide certification that Surety has reinsured that portion of the risk that

exceeds 10 percent of Surety’s capital and surplus. The reinsurance must be with

one or more reinsurers who are duly authorized, accredited, or trusted to do business

in the State of Texas. The amount reinsured by reinsurer may not exceed 10 percent

of reinsurer's capital and surplus. The amount of allowed capital and surplus must be

based on information received from the Texas State Board of Insurance.

16.2.1 Surety (1) must also hold certificate of authority from the United States

Secretary of Treasury to qualify as Surety on obligations permitted or required

under federal law; or, (2) may obtain reinsurance for any liability in excess of

$100,000 from a reinsurer that is authorized and admitted as a reinsurer in the

State of Texas and is the holder of a certificate of authority from the United

States Secretary of the Treasury to qualify as Surety or reinsurer on

obligations permitted or required under federal law.



16.2.2 Determination of whether Surety on the Bond or the reinsurer holds a

certificate of authority from the United States Secretary of the Treasury is

based on information published in the Federal Register covering the date on

which Bond was executed.

16.2.3 Each Bond given or tendered to the City pursuant to the Agreement must be

on City forms with no changes made by Contractor or Surety, and must be

dated, executed, and accompanied by power of attorney stating that the

attorney in fact executing such the bond has requisite authority to execute

such Bond. The Bonds must be dated and must be no more than 30 days old.

16.3 Surety shall designate in its Bond, power of attorney, or written notice to the City, an

agent resident in Harris County to whom any requisite notices may be delivered and

on whom service of process may be had in matters arising out of the suretyship.

16.3.1 The City shall provide Contractor with reasonable notice of an event for which

the City intends to request performance from Surety and an opportunity for

Contractor to cure before requesting performance from Surety. In no event

shall this opportunity to cure period be less than 10 business days.

16.4 Contractor shall furnish information to a payment bond beneficiary as required by TEX.

GOV’T CODE ANN. CH. 2253.

16.5 Contractor shall deliver updated Bonds to the City upon any renewal or change in

terms to the Bonds.

17.0 ANTI-BOYCOTT OF ISRAEL:

17.1 Contractor certifies that Contractor is not currently engaged in and agrees for the

duration of this Agreement not to engage in, the boycott of Israel as defined by Section

808.001 of the Texas Government Code. 18.0 ZERO TOLERANCE POLICY FOR HUMAN TRAFFICKING AND RELATED ACTIVITES:



18.1 The requirements and terms of the City of Houston’s Zero Tolerance Policy for Human

Trafficking and Related Activities, as set forth in Executive Order 1-56, as revised

from time to time, are incorporated into this Agreement for all purposes. Contractor

has reviewed Executive Order 1-56, as revised, and shall comply with its terms and

conditions as they are set out at the time of this Agreement’s effective date. Contractor

shall notify the City’s Chief Procurement Officer, City Attorney, and the Director of any

information regarding possible violation by the Contractor or its subcontractors

providing services or goods under this Agreement within 7 days of Contractor

becoming aware of or having a reasonable belief that such violations may have

occurred, have occurred, or are reasonably likely to occur.

III. DUTIES OF CITY

1.0 PAYMENT TERMS:

1.1 The Fees specified below are complete charges for the performance of Basic and

Additional Services and include all overhead, mileage and office expenses. All fees

shall only be payable from certain Allocated Funds, as provided below.

1.2 Basic Services

The City shall pay, and Contractor shall accept monthly installment payments

representing 1/12th of the annual total for the operation and maintenance fees for the

applicable fiscal year as set out on Item 5 in Exhibit “H”. Contractor’s monthly

payments for Basic Services may be subject to a Service Fee Adjustment as specified

in this Agreement, for Contractor’s failure to comply with the specific terms and

conditions of this Agreement.

1.3 Additional Services

For all Additional Services that are not included in the Scope of Work or part of Basic

Services, Contractor shall submit a Requirements Document. Requirements

Document means a document setting out a defined scope and deliverable when the

Director requests such services from the Contractor by means of a task authorization

letter and/or approved Change Order. Director and Contractor shall negotiate a fixed

price for such services and only use the Contractor rates as set forth in the attached

Exhibit “H” for Additional Services that can be defined as Major Emergencies, not to



exceed the amount appropriated and allocated by the City Council for Additional

Services in each year that this Agreement is in effect. The City’s estimated budget for

Additional Services during the term of this Agreements is set forth in Exhibit “H”. The

Contractor understands that the amounts set forth in Exhibit “H” for Additional

Services are estimates only, and that the City Council is not obligated to appropriate

and allocate said amounts. Contractor’s payment for Additional Services may be

subject to a Service Fee Adjustment as specified in this Agreement, for Contractor’s

failure to comply with the specific terms and conditions of this Agreement.

1.4 Any quantities of services or Deliverables shown in any part of this Agreement or its

exhibits are estimated only and are not any guarantee that the City will not purchase

more or less of those services or Deliverables. The City will pay only for the services

or Deliverables actually ordered and only at the unit prices set out.

1.5 Standard Payment Terms:

The City of Houston’s standard payment term is to pay 30 days after receipt of invoice

or receipt of goods or services, whichever is later, according to the requirements of

the Texas Prompt Payment Act (Tx. Gov’t Code, Ch. 2251). However, the City will

pay in less than 30 days in return for an early payment discount from vendor as

follows:

- Payment Time - 10 Days: 2% Discount

- Payment Time - 20 Days: 1% Discount

The Contractor may elect not to offer a discount for early payment and the City will

make payment net 30 days.

If the City fails to make a payment according to the early payment schedule above

but does make the payment within the time specified by the Prompt Payment Act, the

City shall not receive the discount, but shall pay no other penalty. When the payment

date falls on a Saturday, Sunday, or official holiday when City offices are closed and

City business is not expected to be conducted, payment may be made on the

following business day.



2.0 TAXES:

2.1 The City is exempt from payment of Federal Excise and Transportation Tax and

Texas Limited Sales and Use Tax. Contractor's invoices to the City must not contain

assessments of any of these taxes. The Director will furnish the City’s exemption

certificate and federal tax identification number to Contractor if requested.

3.0 METHOD OF PAYMENT:

3.1 The City shall pay Contractor on the basis of invoices submitted by Contractor and

approved by the Director, showing the specific tasks completed in the preceding

month and the corresponding prices. Each invoice must include documentation

sufficient to justify the Additional Service Fees, including (i) documentation showing

Contractor complied with the approval requirements herein as applicable, (ii) copies

of original invoices and time sheets as required by the Director. The City shall make

payments to Contractor at its address for notices within 30 days of receipt of an

approved invoice. Any and all late payments due to either party from the other shall

accrue interest at the maximum rate permitted by applicable law.

4.0 METHOD OF PAYMENT - DISPUTED PAYMENTS:

4.1 If the City disputes any items in an invoice Contractor submits for any reason,

including lack of supporting documentation, the Director shall temporarily delete the

disputed item and pay the remainder of the invoice. The Director shall promptly notify

Contractor of the dispute and request remedial action. After the dispute is settled,

Contractor shall include the disputed amount on a subsequent regularly scheduled

invoice or on a special invoice for the disputed item only.

5.0 LIMIT OF APPROPRIATION:

5.1 The City's duty to pay money to Contractor under this Agreement is limited in its

entirety by the provisions of this Section.

5.2 In order to comply with Article II, Sections 19 and 19a of the City's Charter and Article



XI, Section 5 of the Texas Constitution, the City has appropriated and allocated the

sum of to pay money under this Agreement during the City’s

current fiscal year(the "Original Allocation"). The executive and legislative officers of

the City, in their discretion, may allocate supplemental funds for this Agreement, but

they are not obligated to do so. Therefore, the parties have agreed to the following

procedures and remedies:

5.3 The City has not allocated supplemental funds or made a Supplemental Allocation for

this Agreement unless the City has issued a Service Release Form, has issued to

Contractor a Service Release Order, or similar form approved by the City Controller,

containing the language set out below. When necessary, the Supplemental Allocation

shall be approved by motion or ordinance of City Council.

“NOTICE OF SUPPLEMENTAL ALLOCATION OF FUNDS”

By the signature below, the City Controller certifies that, upon the request of the

responsible director, the supplemental sum set out below has been allocated for the

purposes of the Agreement out of funds appropriated for this purpose by the City

Council of the City of Houston. This supplemental allocation has been charged to

such appropriation.

5.4 The Original Allocation plus all supplemental allocations are the Allocated Funds. The

City shall never be obligated to pay any money under this Agreement in excess of the

Allocated Funds. Contractor must assure itself that sufficient allocations have been

made to pay for services it provides. If Allocated Funds are exhausted, Contractor’s

only remedy is suspension or termination of its performance under this Agreement

and it has no other remedy in law or in equity against the City and no right to damages

of any kind.

6.0 CHANGES:

6.1 At any time during the Term, the Director may issue a Change Order to increase or

decrease the scope of services or change plans and specifications, as he or she may

find necessary to accomplish the general purposes of this Agreement, subject to

compliance with Applicable Laws. If a Change Order is approved, then Contractor



shall furnish the services or deliverables in the approved Change Order in accordance

with the requirements of this Agreement plus any special provisions, specifications,

or special instructions issued to execute the extra work.

6.2 If approved, the Director may issue the Change Order in substantially the following

form:

CHANGE ORDER

TO: [Name of Contractor] FROM: City of Houston, Texas (the "City") DATE: [Date of Notice] SUBJECT: Change Order under the Agreement between the City and

[Name of Contractor] countersigned by the City Controller on [Date of countersignature of the Agreement]

Subject to all terms and conditions of the Agreement, the City requests that Contractor

provide the following:

[Here describe the additions to or changes to the equipment or services and the

approved Change Order Charges applicable to each.]

Signed: [Signature of Director]

6.3 The Director may issue more than one Change Order, subject to the following

limitations and Applicable Laws:

6.3.1 In approving this Agreement, Council expressly authorizes the Director to

approve a Change Order of up to $50,000. A Change Order of more than

$50,000 over the approved contract amount must be approved by the City

Council.

6.3.2 If a Change Order describes items that Contractor is required to provide under

the terms of this Agreement, the City is not obligated to pay any additional

money to Contractor for any such item.

6.3.3 In accordance with Applicable Laws, the Total of all approved Change Orders

issued under this Agreement may not increase the Original Agreement

amount by more than 25%.



6.4 Whenever Contractor receives a Change Order, Contractor shall furnish all material,

equipment, and personnel necessary to perform the work described in the Change

Order. Contractor shall complete the work within the time prescribed. If no time for

completion is prescribed, Contractor shall complete the work within a reasonable time.

If the work described in any Change Order causes an unavoidable delay in any other

work Contractor is required to perform under this Agreement, Contractor may request

a time extension for the completion of the work. The Director’s decision regarding a

time extension is final.

6.5 A product or service provided under a Change Order is subject to inspection,

acceptance, or rejection in the same manner as the work described in the Original

Agreement, and is subject to the terms and conditions of the Original Agreement as

if it had originally been a part of the Agreement.

6.6 Change Orders are subject to Applicable Laws and the Allocated Funds provisions of

this Agreement.

IV. TERM AND TERMINATION

1.0 CONTRACT TERM:

1.1 This Agreement is effective on the Countersignature Date and expires five (5) years

after the date specified in the Notice to Proceed (“Term”) unless sooner terminated

according to the terms of this Agreement.

2.0 NOTICE TO PROCEED:

2.1 Contractor shall begin performance under this Agreement on the date specified in a

Notice to Proceed from the Director.

3.0 RENEWALS:

3.1 Upon expiration of the Initial Term, and so long as the City makes sufficient

supplemental allocations, this Agreement will be automatically renewed for five

successive one-year terms on the same terms and conditions. If either Party elects



not to renew this Agreement, that Party shall notify the other in writing of non-renewal

at least 30 days before the expiration of the then-current term.

4.0 TIME EXTENSIONS:

4.1 If the Contractor requests an extension of time to complete its performance, then the

Director may, in his or her sole discretion, extend the time so long as the extension

does not exceed 90 days. The extension must be in writing but does not require

amendment of this Agreement. Contractor is not entitled to damages for delay(s)

regardless of the cause of the delay(s).

5.0 TERMINATION FOR CONVENIENCE BY THE CITY:

5.1 The Director may terminate this Agreement at any time by giving 60 days written

notice to Contractor. The City's right to terminate this Agreement for convenience is

cumulative of all rights and remedies which exist now or in the future.

5.2 On receiving the notice, Contractor shall, unless the notice directs otherwise,

immediately discontinue all services under this Agreement and cancel all existing

orders and subcontracts that are chargeable to this Agreement. As soon as

practicable after receiving the termination notice, Contractor shall submit an invoice

showing in detail the services performed under this Agreement up to the termination

date. The City shall then pay the fees to Contractor for services actually performed,

but not already paid for, in the same manner as prescribed in Section III unless the

fees exceed the allocated funds remaining under this Agreement.

5.3 TERMINATION OF THIS AGREEMENT AND RECEIPT OF PAYMENT FOR

SERVICES RENDERED AND, IF NECESSARY, AN APPROVED CHANGE ORDER

UNDER ARTICLE IV, SECTION 9.2 ARE CONTRACTOR'S ONLY REMEDIES FOR

THE CITY’S TERMINATION FOR CONVENIENCE, WHICH DOES NOT

CONSTITUTE A DEFAULT OR BREACH OF THIS AGREEMENT. CONTRACTOR

WAIVES ANY CLAIM (OTHER THAN ITS CLAIM FOR PAYMENT AS SPECIFIED

IN THIS SECTION), IT MAY HAVE NOW OR IN THE FUTURE FOR FINANCIAL

LOSSES, LOSSES OR OTHER DAMAGES RESULTING FROM THE CITY'S

TERMINATION FOR CONVENIENCE.



6.0 TERMINATION FOR CAUSE BY CITY:

6.1 If Contractor defaults under this Agreement, the Director may either terminate this

Agreement or allow Contractor to cure the default as provided below. The Director

may terminate the agreement in less than 30 days only if the Director finds such

termination necessary to protect public health or public safety. The City's right to

terminate this Agreement for Contractor's default is cumulative of all rights and

remedies which exist now or in the future. Default by Contractor occurs if:

6.1.1 Contractor fails to perform any of its duties under this Agreement, fails to

comply with the terms of the Agreement (including failure to comply with the

Consent Decree and Consent Decree Obligations), or in the event of

Contractor’s breach or threatened breach of this Agreement or of any

covenant, representation or warranty in the Agreement;

6.1.2 Contractor becomes insolvent;

6.1.3 all or a substantial part of Contractor’s assets are assigned for the benefit of

its creditors; or

6.1.4 a receiver or trustee is appointed for Contractor.

6.2 If a default occurs, the Director may, but is not obligated to, deliver a written notice to

Contractor describing the default and the termination date. The Director at his or her

sole option, may extend the termination date to a later date. If the Director allows

Contractor to cure the default and Contractor does so to the Director’s satisfaction

before the termination date, then the termination is ineffective. If Contractor does not

cure the default before the termination date, then the Director may terminate this

Agreement on the termination date, at no further obligation of the City.

6.3 To effect final termination, the Director must notify Contractor in writing. After

receiving the notice, Contractor shall, unless the notice directs otherwise, immediately

discontinue all services under this Agreement, and promptly cancel all orders or

subcontracts chargeable to this Agreement.



7.0 TERMINATION FOR CAUSE BY CONTRACTOR:

7.1 Contractor may terminate its performance under this Agreement only if the City

defaults and fails to cure the default after receiving written notice of it. Default by the

City occurs if the City fails to perform one or more of its material duties under this

Agreement. If a default occurs and Contractor wishes to terminate the Agreement,

then Contractor must deliver a written notice to the Director describing the default and

the proposed termination date.

7.2 The date must be at least 30 days after the Director receives notice. Contractor, at

its sole option, may extend the proposed termination date to a later date. If the City

cures the default before the proposed termination date, then the proposed termination

is ineffective. If the City does not cure the default before the proposed termination

date, then Contractor may terminate its performance under this Agreement on the

termination date.

8.0 TERMINATION RELATED TO CHANGE OF LAW:

8.1 If the City and Contractor are unable to reach a mutually agreeable price adjustment

within 90 days of the date Contractor sends a request for approval of a Change Order

under Article II, Section 10.6, either Party may terminate this Agreement with an

additional 30 days written notice.

V. MISCELLANEOUS 1.0 INDEPENDENT CONTRACTOR:

1.1 Contractor shall perform its obligations under this Agreement as an independent

contractor and not as an employee of the City.

2.0 FORCE MAJEURE:

2.1 Timely performance by both parties is essential to this Agreement. However, neither



party is liable for delays or other failures to perform its obligations under this

Agreement to the extent the delay or failure is caused by a Force Majeure. For

“Consent Decree Obligations,” in the Scope of Work, Force Majeure shall mean any

event arising from causes beyond the control of the City or Contractor, that delays or

prevents the performance of any obligations under the Consent Decree despite best

efforts to fulfill the obligation. “Best efforts” include using efforts to anticipate

reasonably foreseeable Force Majeure events and to address the effects of any such

event (a) as it is occurring and (b) after it has occurred, such that the delay is

minimized to the extent reasonable practicable. For all other non-Consent Decree

Obligations in the Scope of Work. Force Majeure shall include, but not be limited to,

acts of God, strikes, lockouts or other industrial disturbances, acts of the public

enemy, war, blockades, insurrections, riots, epidemics, landslides, lightning,

earthquakes, fires, floods, washouts, extreme droughts, tornadoes, hurricanes,

arrests and restraints of government and people, explosions, whether similar to those

enumerated or otherwise and not within the control of the party claiming such inability,

which by the exercise of due diligence and care such party could not have avoided..

2.2 This relief is not applicable unless the Party claiming Force Majeure does the

following:

2.2.1 uses due diligence to remove the Force Majeure as quickly as possible; and

2.2.2 provides the other party with prompt written notice of the cause and its

anticipated effect. For Consent Decree Obligations, Contractor must provide

the City with written notice immediately and no later than 24 hours upon any

event being claimed as Force Majeure. Notwithstanding any other provision

in this Agreement, Contractor’s failure to comply with the Force Majeure

provisions for Consent Decree Obligations will constitute a breach of this

Agreement and a default.

2.3 The City may perform contract functions itself or contract them out during periods of

Force Majeure. Such performance does not constitute a default or breach of this

Agreement by the City.

2.4 If the Force Majeure continues for more than 30 days, the Director may terminate this



Agreement by giving 30 days' written notice to Contractor. This termination is not a

default or breach of this Agreement with regard to non-Consent Decree Obligations.

CONTRACTOR WAIVES ANY CLAIM IT MAY HAVE FOR FINANCIAL LOSSES OR

OTHER DAMAGES RESULTING FROM THE TERMINATION EXCEPT FOR

AMOUNTS DUE UNDER THE AGREEMENT AT THE TIME OF THE TERMINATION.

3.0 SEVERABILITY:

3.1 If any part of this Agreement is for any reason found to be unenforceable, all other

parts remain enforceable unless the result materially prejudices either party.

4.0 ENTIRE AGREEMENT:

4.1 This Agreement, including its Exhibits and Appendices, merges the prior negotiations

and understandings of the Parties and embodies the entire agreement of the Parties.

No other agreements, assurances, conditions, covenants (express or implied), or

other terms of any kind exist between the Parties regarding this Agreement. In no

event shall the preprinted terms, conditions or other language found on Contractor’s

purchase order, acknowledgement, work order, invoice or any other form be

considered part of, or an amendment or modification to, this Agreement.

5.0 WRITTEN AMENDMENT:

5.1 Unless otherwise specified elsewhere in this Agreement, this Agreement may be

amended only by written instrument executed on behalf of the City (by authority of an

ordinance duly adopted by the City Council) and Contractor. The Director is only

authorized to perform the functions specifically delegated to him or her in this

Agreement.

6.0 APPLICABLE LAWS:

6.1 This Agreement is subject to the laws of the State of Texas, the City Charter and

Ordinances, the laws of the federal government of the United States, and all rules and

regulations of any regulatory body or officer having jurisdiction, including “Applicable

Law” as defined in Exhibit “A”.



6.2 The Agreement shall be interpreted and enforced in accordance with the laws of the

State of Texas and venue for any litigation relating to this Agreement is Harris County,

Texas.

7.0 NOTICES:

7.1 All notices to either Party to the Agreement must be in writing and must be delivered

by hand, facsimile, United States registered or certified mail, return receipt requested,

United States Express Mail, Federal Express, Airborne Express, UPS or any other

national overnight express delivery service. The notice must be addressed to the

Party to whom the notice is given at its address set out in Article I, Section 1 of this

Agreement or other address the receiving Party has designated previously by proper

notice to the sending Party. Postage or delivery charges must be paid by the Party

giving the notice.

8.0 NON-WAIVER:

8.1 If either Party fails to require the other to perform a term of this Agreement, that failure

does not prevent the Party from later enforcing that term and all other terms. If either

Party waives the other’s breach of a term, that waiver does not waive a later breach

of this Agreement.

8.2 An approval by the Director, or by any other employee or agent of the City, of any part

of Contractor’s performance does not waive compliance with this Agreement or

establish a standard of performance other than that required by this Agreement and

by law. The Director is not authorized to vary the terms of this Agreement, except as

may be expressly authorized in this Agreement.

9.0 INSPECTIONS, AUDITS AND OWNERSHIP AND ACCESS TO MATERIALS AND DOCUMENT RETENTION:

9.1 City representatives may perform, or have performed, (1) audits of Contractor’s books

and records related to Contractor’s performance of this Agreement, and (2)

inspections of all places where work is undertaken in connection with this Agreement.



9.2 Contractor understands and agrees that pursuant to the Consent Decree and

Consent Decree Obligations, the City, United States, State and their representatives,

including attorneys, contractors and consultants, shall have the right of entry to any

Wastewater Treatment Plants or Wastewater Collection and Treatment Systems

governed by the Consent Decree at all reasonable times to monitor or assess

Consent Decree Obligations and conduct sampling and other activities related to the

Consent Decree.

9.3 Contractor shall retain and preserve (and instruct all of its subcontractors or other

agents to retain and preserve) copies of all materials, records, information,

documents and underlying data (including those in electronic form) that relate to the

Consent Decree or Consent Decree Obligations for 5 years after the termination of

the Consent Decree. The Contractor agrees to implement a system to ensure

compliance with this provision and the record retention requirements shall apply

regardless of any document-retention policy to the contrary. This provision does not

affect the applicable statute of limitations.

9.4 All materials, records, information, documents and underlying data (including those

in electronic form) acquired or generated in the course of performing this Agreement

constitute Work Product and belong to and are the property of the City. Contractor

shall deliver all copies of the Work Product to the City at no expense to the City upon

the earlier to occur of: (i) the City’s request, (ii) termination of the Agreement

howsoever brought about, or (iii) completion of the Scope of Work. No Work Product

may be withheld on the grounds that it is privileged; however, nothing in this

Agreement shall require Contractor to provide documents to the City that are listed in

a privilege log for which the Contractor can claim privilege recognized by federal law

until the matter is resolved by the Parties or a court of law.

9.5 All information regarding this Agreement and the Scope of Work undertaken by this

Agreement requested by media, news or reporting agencies shall be promptly

referred to the City for handling and Contractor shall not disclose any information

without the City’s prior written consent. Any Government Authority request for

information shall be promptly provided to the City for handling and response and

Contractor shall not disclose any information without the City’s prior written consent.



10.0 ENFORCEMENT:

10.1 The City Attorney or his or her designee may enforce all legal rights and obligations

under this Agreement and under Applicable Laws without further authorization.

Contractor shall provide to the City Attorney all documents and records, including but

not limited to Work Product as defined in Exhibit “A”, that the City Attorney requests

to assist in determining Contractor's compliance with this Agreement.

11.0 AMBIGUITIES:

11.1 If any term of this Agreement is ambiguous, it shall not be construed for or against

any party on the basis that the party did or did not write it.

12.0 SURVIVAL:

12.1 Contractor shall remain obligated to the City under all clauses of this Agreement that

expressly or by their nature extend beyond the expiration, termination, suspension or

completion of this Agreement, including but not limited to the terms and provisions of

Article II - Duties of Contractor, Section 2 “Indemnity and Release”, Section 5.0

“Warranties”, Section 11 “Environmental Matters, Warranties, Representations and

Covenants” and Article V – Miscellaneous, Section 9 “Inspections, Audits, Ownership

and Access to Materials and Document Retention.” Additionally, any provision

setting forth an obligation or duty of Contractor that is not expected to or cannot be

performed during the term of this Agreement shall survive expiration, termination,

suspension or completion of this Agreement.

13.0 PARTIES IN INTEREST:

13.1 This Agreement does not bestow any rights upon any third party but binds and

benefits the City and Contractor only.

14.0 SUCCESSORS AND ASSIGNS:

14.1 This Agreement binds and benefits the Parties and their legal successors and



permitted assigns; however, this provision does not alter the restrictions on

assignment and disposal of assets set out in the following paragraph. This Agreement

does not create any personal liability on the part of any officer or agent of the City.

15.0 BUSINESS STRUCTURE AND ASSIGNMENTS:

15.1 Contractor shall not assign this Agreement at law or otherwise or dispose of all or

substantially all of its assets without the Director’s prior written consent. Nothing in

this clause, however, prevents the assignment of accounts receivable or the creation

of a security interest under Section 9.406 (c) of the Texas Business & Commerce

Code. In the case of such an assignment, Contractor shall immediately furnish the

City with proof of the assignment and the name, telephone number, and address of

the Assignee and a clear identification of the fees to be paid to the Assignee.

15.2 Contractor shall not delegate any portion of its performance under this Agreement

without the Director’s prior written consent.

16.0 REMEDIES CUMULATIVE:

16.1 Unless otherwise specified elsewhere in this Agreement, the rights and remedies

contained in this Agreement are not exclusive but are cumulative of all rights and

remedies which exist now or in the future. Neither party may terminate its duties

under this Agreement except in accordance with its provisions.

17.0 CONTRACTOR DEBT:

17.1 If Contractor, at any time during the term of this Agreement, incurs a debt, as the word

is defined in Section 15-122 of the Houston City Code of Ordinances, it shall

immediately notify the City Controller in writing. If the City Controller becomes aware

that Contractor has incurred a debt, he shall immediately notify Contractor in writing.

If Contractor does not pay the debt within 30 days of either such notification, the City

Controller may deduct funds in an amount equal to the debt from any payments owed

to Contractor under this Agreement, and Contractor waives any recourse, therefore.



18.0 REFERENCE TO CONTRACTOR INCLUDES SUBCONTRACTORS AND OTHERS PERFORMING WORK:

18.1 References in this Agreement to Contractor shall include Contractor’s employees,

agents, consultants, contractors or subcontractors of any and all tiers, vendors, and

where applicable, any persons to or with whom Contractor makes arrangements for

performance related to the Scope of Work, and the employees and agents of those

persons.



EXHIBIT "A" DEFINITIONS

As used in this Agreement, the following terms have the meanings set out below:

“Additional Services” shall refer to services that extend beyond Basic Services that are outlined in

Exhibit “B” of this Agreement. Additional Services shall also comply with the Consent Decree and

Consent Decree Obligations as identified herein.

"Agreement" means this contract between the Parties, including all exhibits, change orders, and any

written amendments authorized by City Council and Contractor.

“Applicable Laws” means, but is not limited to limitations, restrictions, conditions, standards,

prohibitions and requirements of any law, statute, ordinance, rule, regulation, order or

determination of any Government Authority, including but not limited to all applicable zoning

ordinances, building codes, flood rules and regulations, health laws and regulations and

Environmental Laws.

“Bio-solids” means the nutrient-rich organic materials resulting from the treatment of domestic

sewage in a treatment facility. When treated and processed, these residuals can be recycled and

applied as fertilizer to improve and maintain productive soils and stimulate plant growth. Biosolids

are treated, monitored, transported, used, and disposed in accordance with the Federal and State

regulatory requirements (40CFR 503 and 30 TAC 312).

“Bonds” means Performance Bond, Payment Bond, Maintenance Bond, and other Surety

instruments executed by Surety. When in singular form, “Bond” refers to an individual instrument.

"City" is defined in the preamble of this Agreement and includes its successors and assigns.

“CMMS” means Computerized Maintenance Management System.

“Consent Decree” means the document attached as Appendix O.

“Consent Decree Obligations” means any and all obligations or requirements set forth in the Consent

Decree that are applicable to the Scope of Work and any other work performed by Contractor under



the Agreement or amendments thereto, including Additional Services.

“Contamination” includes, but is not limited to, the presence, suspected presence or threat of one or

more substances (including Hazardous Materials) in the Environment: (1) which has or may result in

pollution, contamination, degradation, impacts, damage, or threat or injury caused by, related to, or

arising from, in connection with or concerning those substances or Hazardous Materials, (2) that

may affect, or pose an actual or potential threat or impact to, property, human health or the

Environment, or (3) which is not allowed by Environmental Laws or which is not in compliance with

Environmental Laws.

“Contract Administrator” means the representative of the City who is responsible for the

administration for the Contract.

“Contract Award Notice” means the official notification substantiated by the Notice to Proceed issued

by the Director to the Contractor.

“Contract Charges” means charges that accrue during a given month as defined in Article III.

“Contract Term” is defined in Article IV.

"Contractor" is defined in the preamble of this Agreement and includes its successors and assigns.

In addition, references in this Agreement to Contractor shall include Contractor’s employees, agents,

consultants, contractors or subcontractors of any and all tiers, vendors, and where applicable, any

persons to or with whom Contractor makes arrangements for performance related to the Scope of

Work, and the employees and agents of those persons.

"Countersignature Date" means the date this agreement is countersigned by the City Controller.

“Dilute Solids” means wastewater containing 0.5% to 5% solids.

“Director" mean the Directors/Chiefs of each of the Departments or the City Purchasing Agent for

the City, or the person he or she designates.

“Effective Date” means the date the contract is countersigned by the City Controller.



“Emergency Service” is defined as a service or repair needed to address emergency conditions that

affect the water system, lower the quality and/or quantity of water, damage water system or

wastewater system resources, and place the health and safety of the community and/or environment

at risk.

“End-Dump Trailer” means a semi-trailer whose tractor-end can be raised so that the material in the

trailer can slide out through the tailgate. An end-dump trailer shall be able capable of legally hauling

a minimum net weight of 48,000 wet tons of bio-solids or solids.

“Environmental Laws” means, but is not limited to, all federal, state and local statutes, laws,

ordinances, regulations, codes, Permits, Licenses, authorizations and rules, and other provisions

having the force and effect of law, in each case as amended, and including any judicial or

administrative orders, determinations, writs, injunctions, judgments and decrees relating to human

health or safety, Hazardous Materials or the Environment, including without limitation such laws as

the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”),

42, U.S.C. Section 9601 et seq.; the Resource Conservation and Recovery Act of 1976 (“RCRA”),

42 U.S.C. Section 6901 et seq.; as well as all laws relating to the generation, production, presence,

use, distribution, handling, storage, treatment, disposal, transportation, testing, processing,

Discharge, Release, control, investigation or cleanup of Hazardous Materials, the Environment or

the protection of human health, safety, natural resources or ecological impacts.

“Environmental Liabilities” means, but is not limited to, any and all actual, potential or threatened

administrative, regulatory, or judicial actions, suits, allegations, demands, demand letters, claims,

causes of action, proceedings, liens, notices of noncompliance or violation, investigations,

obligations, liabilities (including strict liabilities such as, the Comprehensive Environmental

Response, Compensation, and Liability Act [CERCLA], the Resource Conservation and Recovery

Act [RCRA] or similar Environmental Laws, statutes, regulations or laws, whether state or federal),

accrued or unaccrued losses, actual or potential liabilities and/or damages (including but not limited

to natural resource damages), diminution of property value, injuries, costs (including but not limited

to clean-up, remediation, removal, remedial, investigative, containment, closure or post-closure,

restoration and/or monitoring costs), settlements, assessments, Losses, fines, penalties (including

stipulated penalties), interest, legal or attorney’s fees and costs of court relating in any way to or

concerning the Environment, Environmental Laws, Hazardous Materials or Contamination.

“Governing Body” means the Mayor and City Council of the City of Houston.



“Governmental Authority” includes, but is not limited to, any federal, state or local government,

municipality, county, authority, board, commission, council, entity, or agency (and any legislative,

executive or judicial branch of the foregoing), and all of their predecessor or successors.

“Greater Northeast Houston Service Area (GNHESA)” means the service areas located throughout

Kingwood, Forest Cove, Cedar Bayou, Harris County MUD No. 48, Harris County MUD No. 58, Lake

Houston, Belleau Wood, District 73 and District 82, Plantation Hills, Eisenhower Park, the Water Well

site at Cedar Bayou, and the West Lake Houston Water System, which includes Waters Edge

Wastewater Treatment Plant, Lake Livingston Drive Lift Station, and the collection and distribution

lines and related water and wastewater utility infrastructure associated with Harris County MUD 450

(See Appendix M).

“Hazardous Materials” includes, but is not limited to any substance, material, mixture, constituent,

waste, chemical, water, substance or other thing defined as or included in the definition of “hazardous

substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous wastes,” “restricted

hazardous wastes,” “toxic substances,” “toxic pollutants,” “toxic chemicals,” “contaminants,”

“pollutants,” “solid wastes,” “industrial wastes,” “regulated substances,” “industrial solid or hazardous

wastes,” “wastes” or words of similar import, under Environmental Laws. Hazardous Materials also

includes (a) anything considered toxic, explosive, corrosive, reactive, ignitable, flammable,

radioactive, infectious, carcinogenic or mutagenic, (b) any lead or lead-based paint, pesticide,

polychlorinated biphenyls (“PCBs”), dioxins, hydrocarbon, petroleum, petroleum based substances,

BTEX, MTBE, TPH, petroleum product or petroleum additive (including but not limited to lead),

diesel, fuels, gasoline, natural gas or natural gas products, dry cleaning products or solvents (as well

as any and all ingredients, degradation or daughter products or byproducts or constituents thereof

of any of the foregoing), (c) any other chemical, material, waste or substance, (or constituent thereof),

which is in any way regulated under the Environmental Laws, including mixtures thereof with other

materials, and including any regulated building materials such as asbestos and lead, or (d) any other

substance, material, constituent, waste, or chemical (or constituent thereof) that may affect or pose

an actual or potential threat or impact to human health and the Environment.

“Losses” includes, but is not limited to losses, damages, costs, claims, causes of action, liabilities

and Environmental Liabilities (including strict liabilities under laws, regulations or statutes, including

CERCLA or similar laws addressing environmental matters and other strict liabilities), fines, penalties

(including stipulated penalties), expenses (including, without limitation, reasonable attorney’s fees,



court costs, and all other legal or defense costs and interest), judgments, liens, suits, enforcement

actions, demands, injuries (including without limitation, death to persons whether they be contractor’s

or City’s employees or others), actual or threatened damage to the Environment or property damage.

“Major Emergency” is an incident that affects large portions of the water system, lowers the quality

and/or quantity of water, damages water system or wastewater system resources, and/or places

the health and safety of the community at risk; the Director shall have the sole authority to declare

a Major Emergency.

“Notice to Proceed” means a written communication from the Director to Contractor instructing

Contractor to begin performance.

“O&M Manuals” means the operations and maintenance manuals for the Water and Wastewater

Facilities, including manuals for both systems operation and for the operation and maintenance of

the individual items of equipment as provided by the manufacturer(s). The documents included

hereunder will be designated by the Director.

“Parties” mean all the entities set out in the Preamble who are bound by this Agreement.

“Permits” means but is not limited to all required permits, licenses, approvals, permissions or

authorizations required by Applicable Laws, Environmental Laws, and/or necessary to conduct this

Scope of Work.

“Process Residual” means all waste and by products resulting from the operation and maintenance

of the Water and Wastewater Facilities, including sludges, chemical residuals, lubricants, off-

specification treated water and waste generated from emptying the various treatment units.

“Release” means but is not limited to any actual, threatened or suspected release, spill, emission,

leaking, pumping, pouring, injection, deposit, disposal, dumping, discharge, dispersal, leaching,

escaping, emanation, transport, movement or migration (whether passive or active) of any

Hazardous Material in, through, into or onto the Environment of any kind whatsoever.

“Residuals” means biosolids and other municipal waste remaining after treatment at one of the City’s

wastewater treatment plants and requiring disposal in accordance with 40 CFR Part 503.



“Roll-on / Roll-off Container” means a truck transportable 25 cubic yards container which shall be

capable of hauling at least 30,000 pounds of bio-solids within its outside dimensions.

“Sewage sludge” means the residual, semi-solid material that is produced as a by-product during

sewage treatment of municipal wastewater.

“Solids” means solid material other than bio-solids. This includes sand and grit, rags, scum, and

other typical wastewater debris, etc.

“Spare Parts Inventory” means the stock of spare parts to be maintained on site during the Term in

accordance with the provisions of this Agreement.

“Surety” means a corporate entity that is bound by one or more Bonds, and is responsible for

completion of the Work, including the correction period, and for payment of debts incurred in

fulfilling the Contract. Surety shall include co-surety or reinsurer, as applicable.

“Texas Commission of Environmental Quality (TCEQ)” means Texas’ state environmental agency

which focuses mostly on promoting clean air and water and the safe management of waste in

Texas. It also serves as a watchdog for the protection of the state’s natural resources.

“Waste activated sludge” means the excess activated biological material produced by activated

sludge plants that is removed from the treatment process to keep the ratio of biomass to food

supplied in the wastewater in balance.

“Work Product” means all materials, records, information, documents and underlying data

(including those in electronic form) acquired or generated in the course of performing this

Agreement.

SAMPLE – SUBJECT TO CHANGE - Houston

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Transcript of SAMPLE – SUBJECT TO CHANGE - Houston