Air Jireh Service Corporation, HVAC Plumbing Specialist Corporation A/K/A HVAC Plumbing Specialist Corporation A/K/A HVAC Plumbing Specialist Inc. D/B/A Air Jireh Service A/K/A Air Jireh Services and Oskar Sepulveda, Jr. v. Weaver & Jacobs Constructors, Inc.

Opinion

ACCEPTED 13-15-00180-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 12/3/2015 4:02:14 11/23/2015 1:28:09 PM Dorian E. Ramirez CLERK NO. 13-15-00180-CV

IN THE THIRTEENTH COURT OF APPEALS FILED IN CORPUS CRRISTIIEDINBURG TEXAS 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 12/3/2015 4:02:14 PM DORIAN E. RAMIREZ No. 13-10-22,801 Clerk 24th District Court

DeWitt County, Texas

Honorable Kemper Stephen Williams

AIRJIREH SERVICE CORPORATION, HVAC PLUMBING SPECIALIST CORPORATION AlKI A HV AC PLUMBING SPECIALIST CORPORATION A/K/ A HV AC PLUMBING SPECIALIST INC., D/B/A AIR JIRER SERVICE A/KJA AIR JIREH SERVICES AND OSKAR SEPULVEDA, JR.

Appellants

V.

WEAVER & JACOBS CONSTRUCTORS, INC.

Appellee

APPELLANT'S FIRST AMENDED BRIEF

Rene Zarazua State Bar No. 24077285 Attorney for Appellants Law Office of Lee Hernandez A Professional Corporation 4100 NW Loop 410, Suite 100 San Antonio, Texas 78229 Tel.: 210.735.4202 Fax: 210.735.4231 rene@leehernandez.com

IDENTITY OF PARTIES AND COUNSEL

Appellants Air Jireh Service Corporation

HV AC Plumbing Specialist Corporation a/k/a HV AC Plumbing Specialist Corporation a/k/a HV AC Plumbing Specialist Inc. d/b/a Air Jireh Service alk/a Air Jireh Services Oskar Sepulveda, Jr.

Counsel for Appellants

Rene Zarazua State Bar No. 24077285 Law Office of Lee Hernandez A professional Corporation 4100 NW Loop 410, Suite 100 San Antonio, Texas 78229

Appellee

Weaver & Jacobs Constructors, Inc.

Counsel for Appellee

Clayton C. Utkov State Bar No. 24028180 Christopher A. Scifres State Bar No. 24088374 FORD NASSEN & BALDWIN P.C. 111 Congress, Suite 1010 Austin, Texas 78701

Presiding Judge

The Honorable Kemper Stephen Williams

TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL. .i

TABLE OF CONTENTS .ii

INDEX OF AUTHORITIES .iii

STATEMENT OF THE CASE 1

ISSUES PRESENTED 2

STATEMENT OF THE FACTS 3

SUMMARY OF THE ARGUMENT 4

ARGUMENT 6

PRAYER 17

CERTIFICATE OF COMPLIANCE 18

CERTIFICATE OF SERVICE 18

APPENDIX 19

-ii-

INDEX OF AUTHORITIES

Airborne Freight Corp. v. CR. Lee Enters. 847 S.W.2d 289 (Tex.App.-EI Paso 1993, writ denied) 15

Antonini v. Harris County Appraisal Dist. 999 S.W.2d 608,614 (Tex. App.-Houston [14th Dist.] 1999, no pet.) 8

Ashford Dev., Inc. v. USLife Real Estate Serv. Corp. 661 S.W.2d 933, 935 (Tex.1983)) 11-12

Bavarian Autohaus, Inc. v. Holland 570 S.W.2d 110, 116 (Tex.Civ.App.-Houston [1st Dist.] 1978, no writ) 16

Baylor Univ. v. Sonnichsen 221 S.W.3d 632, 635 (Tex. 2007) 8

Copeland v. Alsobrook, 3 S.W.2d 598, 604 (Tex. App.-San Antonio 1999, pet. denied) 9

Corpus Christi Dev. Corp. v. Carlton 644 S.W.2d 521, 523 (Tex.App.-Corpus Christi 1982, no writ) 16

Daldav Associates, L.P. v. Lebar 391 F. Supp. 2d 472,476 (N.D. Tex. 2005) 15

Dallas Firefighters Ass'n v. Booth Research Group, Inc., 156 S.W.3d 188, 194 (Tex.App.-Dallas 2005) 15

Desantis v. Wackenhut Corp., 793 S.W.2d 670,688 (Tex. 1990), cert. denied, 498 U.S. 1048, 111 S.Ct. 755, 112 L.Ed.2d 775 (1991) 12,14

Dolenz v. Continental National Bank 620 S.W.2d 572,576 (Tex. 1985) 6

-iii-

English v. Fischer 660 S.W.2d 521,524 (Tex. 1993) 10

Federal Sign v. Texas S. Univ. 951 S.W.2d 401,408-09 (Tex. 1997» 8

Flint & Assoc. v. Intercontinental Pipe & Steel, Inc. 739 S.W.2d 622,624 (Tex.App.-Dallas 1987, writ denied) 16

Formosa Plastics Corp. USA v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41, 47-48 (Tex. 1998) 12,14

Graves v. Sommerfeld 618 S.W.2d 952,954-55 (Tex.Civ.App.-Waco 1981, writ ref'd n.r.e.) 16

Green Tree Acceptance, Inc. v. Pierce 768 S.W.2d 416, 425 (Tex.App.-Tyler 1989, no writ) 16

Gulf Coast Farmers Co-op v. Valley Co-op Oil Mill, 572 S.W.2d 726, 737 (Tex. Civ. App.-Corpus Christi 1978) 8

Harca Energy, Inc. v. Re-Entry People, Inc. 23 S.W.3d 389, 392 (Tex. App.-Amarillo, no pet.) 8

Hernandez v. Ikon Office Solutions, Inc. 306 F. App'x 180,182 (5th Cir. 2009) 11

Kimbrough v. Fox 631 S.W.2d 606, 609 (Tex.App.-Fort Worth 1982, no writ) 15

Lane & Nearn v. Warren 115 S.W. 903 (Tex. Civ. App. 1909, writ refused) 8

Morrow v. HE.B., Inc. 714 S.W.2d 297, 298 (Tex. 1986) 6

-iv-

Oxoco Exploration & Prod., Inc. v. Arrowhead Drilling Corp. No. A14 86 181 CV, 1986 WL 13431, at *1 (Tex. App. Nov. 20, 1986) 6

Premium Hospitality, L.L. C. v. Astra Capital Funding, ClV.A. 12-0779,2014 WL 896807 (E.D. La. Mar. 6,2014) 10

Rosas v. Bursey 724 S.W.2d 402,410-11 (Tex.App.-Fort Worth 1986, no writ) 16

Schindler v. Austwell Farmers Coop. 841 S.W.2d 853, 854 (Tex.1992) 14,16

Spoljaric v. Percival Tours, Inc. 708 S.W.2d 432 (Tex. 1986) 14

Sears, Roebuck & Co. v. Meadows 877 S.W.2d 281,282 (Tex. 1994) 12,14

Stanfield v. O'Boyle 462 S.W.2d 270,272 (Tex. 1971) 14

Stewart Title Guar. Co. v. Sterling 822 S.W.2d 1, 11 (Tex. 1991) 16

Stone v. Lawyers Title Ins. Corp. 554 S.W.2d 183, 185 (Tex.1977) 12,14

Tony Gullo Motors 1, L.P. v. Chapa 212 S.W.3d 299, 304 (Tex.2006) 11

T o. Stanley Boot Co. v. Bank of El Paso 847 S.W.2d 218,222 (Tex. 1992) 14

United Concrete Pipe Corp. v. Spin-Line Co. 430 S.W.2d 360, 364 (Tex. 1968) 8

-v-

Villasenor v. Villasenor 911 S.W.2d411, 420 (Tex. App. 1995) 16

Weynand v. Weynand 990 S.W.2d 843, 846 (Tex. App.-Dallas 199, pet. denied.) 8

Statutes Tex. Bus. & Com. Code § 17.46(a) 12 Tex. Bus. & Com. Code Ann. § 17.49 12 Tex. Bus. & Com. Code Ann. § 26.01 9

-vi-

TO THE HONORABLE THIRTEENTH COURT OF APPEALS:

Appellants, Air Jireh Services Corporation (herein "AJS Corp."), HV AC Plumbing

Specialist Corporation AIKI A HV AC Plumbing Specialist Inc. DIBI A Air Jireh Service A/KlAI

Air Jireh Services (herein "Air Jireh") and Oskar Sepulveda, Jr. (herein "Sepulveda") file this

brief asking the Court to reverse the Order of the trial court against AJS Corp., Air Jireh, and

Sepulveda (herein collectively "Appellants"). Appellants respectfully show that prior to the

filing of this brief, Appellant Sepulveda, filed a Notice of Bankruptcy in this Court. As such, in

order to not violate the Stay as to Sepulveda, Appellants continue the references to Sepulveda in

this brief only for purposes of continuity in Appellant AJS Corp. And Air Jireh's argument and

not to assert any relief in violation of the Bankruptcy Stay.

STATEMENT OF THE CASE

This is an appeal from the February 2,2015 trial concerning Plaintiff, Weaver and &

Jacobs (herein "Weaver & Jacobs ") claims of Breach of Contract, Promissory Estoppel, and

Violation of the Texas Deceptive Trade Practices Act against AJS Corp. and claims of Fraud and

Negligent Misrepresentation against Sepulveda.

Weaver & Jacobs filed an original petition against AJS Corp. for Breach of Contract and

Promissory Estoppel on or about October 3, 2013. AJS Corp. filed an Original Answer on

October December 2,2013. Weaver and Jacobs then filed a Second Amended Petition on

January 22, 2014 alleging a third cause of action of Violation of the Deceptive Trade Practices

Act. Weaver and Jacobs filed their Traditional Motion for Summary Judgment on May 8, 2014.

AJS Corp. filed its Response to Weaver & Jacob's Traditional Motion for Summary Judgment on

June 24,2014. A hearing was held on Weaver & Jacob's Motion for Summary Judgment on July

2,2014 and it was denied by Order dated November 26,2014. On July 30,2014, AJS Corp.

filed its Supplemental Answer and Counterclaim. On August 4,2014, Weaver & Jacobs filed its

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Third Amended Petition adding additional Defendant Air Jireh, and alleging additional causes of

action of Fraud and Negligent Misrepresentation against additional Defendant Sepulveda. Air

Jireh and Sepulveda filed an Answer on September 1, 2014. A trial on the merits was held on

February 2,2014. The Court rendered its Judgment on February 5,2015 against Appellants.

Appellants filed their Objections to Proposed Judgment and Motion to Clarify Court's Ruling

setting the matter for hearing on March 23, 2015. Appellants filed their Request for Findings of

Fact and Conclusions of Law on February 25,2015. The Court signed a Judgment on March 5,

2015. The Court rendered its Findings of Fact and Conclusions of Law on March 20,2015.

Appellants filed their Notice of Appeal on April23, 2015.

ISSUES PRESENTED

1. Whether the Trial Court erred in its Findings of Fact and Conclusions oflaw in

granting a judgment against AJS, Corp.

2. Whether the Trial Court erred in ruling that a valid, enforceable contract was formed

between Weaver & Jacobs and Appellants.

3. Whether the Trial Court erred in ruling that Air Jireh's Bid represented Air Jireh's

enforceable promise, in such a manner that Weaver & Jacobs would act in reliance on the

promise; and that Weaver & Jacobs did rely on the promise to its detriment.

4. Whether the Trial Court erred in ruling that Weaver & Jacobs is entitled to any

protections afforded to consumers under the DTP A.

5. Whether the Trial Court erred in ruling that Sepulveda submitted a copy of Air Jireh's

resume which contained several representations; that these representations were false; that

Sepulveda made these representations with knowledge of their falsity or recklessly, as positive

assertions, without knowledge of their truth; and that Weaver & Jacobs relied on Oskar

Sepulveda's false representations.

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6. Whether the Trial Court erred in ruling that Sepulveda submitted the Bid to Weaver &

Jacobs, in which he represented that Air Jireh would perform the Work in exchange for the sum

of $125,971. 00; that these representations were false; that Sepulveda made these representations

with knowledge oftheir falsity or recklessly, as positive assertions, without knowledge of their

truth; and that Weaver & Jacobs relied on Sepulveda's false representations.

7. Whether the Trial Court erred in ruling that Sepulveda represented to Weaver &

Jacobs that Air Jireh had 20 years experience, that Air Jireh had performed certain jobs, and that

Air Jireh would perform the Work in exchange for $125,971.00; that these representations were

false; that Sepulveda intended that Weaver & Jacobs to rely on said.

8. Whether the Trial Court erred in awarding attorney fees to Weaver & Jacobs.

STATEMENT OF FACTS

The parties filed a Joint Statement of Stipulated Facts. Additionally, on June 26,2013,

Sepulveda, Project Manager for Air Jireh found a request for proposals on the Builders

Exchange Website regarding the Taft Independent School District High School Improvements

projects (herein the "Project"). The same day Sepulveda submitted an email bid (herein

"original bid") to Weaver & Jacobs in the amount of$147,732.00. The original bid was per the

plans and specifics of the project and was to include certain digital controls (herein "controls").

Due to the fact Weaver & Jacobs were over budget, Mike Weaver of Weaver & Jacobs contacted

Sepulveda to engage in value engineering. On July 7,2013, Mr. Weaver sent Air Jireh an email

informing Air Jireh that Weaver & Jacobs wanted to replace the controls with wall-mounted

thermostats. On July 9, 2014 Air Jireh responded to Weaver & Jacobs by submitting a revised

bid (herein "first revised bid") in the amount to f$132, 670.00 and was incorrectly dated June

26,2013. According to Weaver & Jacobs, Air Jireh had not adjusted the first revised bid to

recognize the full reduction price due to the fact that the controls were a single-source

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specification. Air Jireh submitted another revised bid (herein "second revised bid") in the

amount of $125,971.00 which indicated thennastats instead of controls and was also incorrectly

dated June 26,2013. On July 23,2013 Weaver & Jacobs sent a subcontract for Air Jireh to

review and sign. Air Jireh reviewed the subcontract and noticed problems with the subcontract.

The first problem with the contract was the commencement date. The date on the contract was

June 25,2013. The commencement date was also June 25,2013, but the contract was forwarded

to Air Jireh on July 23, 2013. The second problem with the contract was that it stated the

subcontract was to follow the scope and work in accordance with the plans and specifications.

Although Air Jireh submitted three (3) separate bids, the plans and specifications were never

properly changed and included controls. As part of Air Jireh protocol, they will not submit

submittals, shop drawings, or release PO information without having a signed contract with each

job. Air Jireh could not sign the contract due to the above stated problems. Nonetheless, when

Weaver & Jacobs presented their subcontract to a third-party after Air Jireh allegedly breached,

the subcontract had a different commencement date and the plans and specs were changed.

SUMMARY OF ARGUMENT

It is Appellants' position that the Trial Court has erred regarding its Judgment against

AJS Corp., Air Jireh, and Sepulveda. First the Trial Court erred by granting a judgment against

AJS, Corp. as there was no evidence of AJS Corp. at trial, in the Court's Findings of Fact and

Conclusions of Law, nor in the party's stipulated facts. Second, the Trial Court has erred in

concluding that a valid, enforceable contract was fanned. A contract can only exist if there is

mutual assent or "meeting of the minds" regarding the subject matter and essential terms ofthe

contract. There was not an agreement to the terms of the contract. While Weaver & Jacobs

thought certain details regarding controls and specs or commencement dates were not

necessarily important, they were important to Appellants' to avoid liability. If they were not so

5

important, then why did Weaver & Jacobs change the third-party subcontract after Appellants

allegedly breached? Third, the Trial Court erred in concluding that Air Jireh's bid offer

represented an enforceable promise. To succeed on a claim of promissory estoppel, Appellants

feel that the promise must be clear and unambiguous in its terms. As stated earlier, some

material aspects of the alleged promise/contract were not clear. Weaver & Jacobs felt that they

were not clear as well, which is why they changed the third-party subcontract. Fourth, the Trial

Court erred in concluding that Weaver & Jacobs was entitled to relief under the DTPA. Texas

allows a DTPA claim to run with a breach of contract claim when the Defendant's

misrepresentation is made to induce the consumer into the transaction. However, there was

never any evidence of Appellants misrepresenting any information to induce Weaver & Jacobs

into the transaction. As a matter of fact, the evidence shows the contrary, that Appellants had

every intention to perform according to their bids, as long as both sides were clear on the terms.

Furthermore, Weaver & Jacobs, as a matter oflaw, is not even entitled to the protections

afforded to Consumers under the DTPA because Weaver & Jacobs is not a consumer as the

conflict arose from a written contract that was more than $100,000.00. The fact that every bid

submitted by Appellants was over $100,000.00 removes Weaver & Jacobs from the protections

under the DTP A. Fifth, the Trial Court erred in concluding that Sepulveda made false

representations when submitting the resume and submitting the bid. The only evidence

regarding the resume of AJS Corp., was that it was true and correct as to the services performed

and that the company had been in business for the past twenty (20) years. There was never any

controverting evidence. A company is allowed to perform under a d/b/a and take credit for the

jobs. Furthermore, there is a lack of evidence to show that Appellants never intended to enter

into a contract. The evidence actually shows that Appellants had every intention to enter into a

contract, but at an agreement to the terms, which there was never an agreement. Lastly, the Trial

6

Court erred in awarding attorney fees to Weaver & Jacobs. The fees were not reasonable and

necessary. Furthermore, the fees were not segregated as they should have been because there

were multiple causes of action that were not so interrelated as required. An award of attorney's

fees erroneously based upon evidence of unsegregated fees requires a remand.

ARGUMENT

Issue 1: The Trial Court erred in its Findings of Fact and Conclusions oflaw and in

granting a judgment against AJS Corp.

ARGUMENT & AUTHORITIES

On March 5, 2015, the Honorable Kemper Stephen Williams signed a Final Judgment in

favor of Weaver & Jacobs and against all Appellants. However, in the Findings of Fact and

Conclusions of Law signed by the Court on March 20,2015, AJS Corp. is never listed or even

referred to, only Air Jireh and Sepulveda are named. Furthermore, AJS Corp. was never a party

in the Joint Statement of Stipulated Facts, nor was it listed in said Joint Statement of Stipulated

Facts. Lastly, there was no evidence at trial to implicate AJS, Corp., only Air Jireh. In

considering a no evidence point of error, this court must consider only evidence and inferences

that support the finding and disregard all contrary evidence and inferences. Dolenz v.

Continental National Bank, 620 S.W.2d 572, 576 (Tex. 1985); Oxoco Exploration & Prod., Inc.

v. Arrowhead Drilling Corp., No. A14 86 181 CV, 1986 WL 13431, at *1 (Tex. App. Nov.

20, 1986). There was no evidence, nor were there any inferences as to AJS Corp. and as such it

was error for the Court to grant a judgment against AJS, Corp. without any evidence.

Issue 2: The Trial Court erred in ruling that a valid, enforceable contract was formed

between Weaver & Jacobs and Air Jireh.

7

ARGUMENT & AUTHORITIES

To establish the existence of an enforceable contract, a party must prove (l) an offer, (2)

acceptance of the offer, (3) mutual assent or "meeting of the minds" regarding the subject matter

and essential terms of the contract, and (4) consideration, or mutuality of obligations. See

Baylor Univ. v. Sonnichsen, 221 S.W.3d 632,635 (Tex. 2007); Harca Energy, Inc. v. Re-Entry

People, Inc., 23 S.W.3d 389,392 (Tex. App.-Amarillo, no pet.) (citing Federal Sign v. Texas S.

Univ., 951 S.W.2d 401,408-09 (Tex. 1997)). To form a contract, the offer must be clear and

definite. Gulf Coast Farmers Co-op v. Valley Co-op Oil Mill, 572 S.W.2d 726, 737 (Tex. Civ.

App.-Corpus Christi 1978). A court, in deciding whether a contract was made, should determine

from the facts that all essential terms thereofhave been met. Id. The offer from Weaver &

Jacobs was anything but clear and definite, except of course to Weaver & Jacobs. RR 32:1-5;

33: 11-34:22 Three different bids were submitted, all with the alleged date of June 26, 2013. RR

31: 10-32:4. Likewise, there must be a clear and definite acceptance of all terms contained in the

offer. Id. An acceptance must not change the terms of an offer. If it does, the offer is rejected.

United Concrete Pipe Corp. v. Spin-Line Co., 430 S.W.2d 360,364 (Tex. 1968). A material

change in a proposed contract constitutes a counteroffer, which must be accepted by the other

party. Antonini v. Harris County Appraisal Dist. 999 S.W.2d 608, 614 (Tex. App.-Houston

[14th Dist.] 1999, no pet.). It is well established under Texas Law that the submission ofa bid in

response to an invitation for bids constitutes a formal offer to enter into a contract. Lane &

Nearn v. Warren, 115 S.W. 903 (Tex. Civ. App. 1909, writ refused). The submission of a

second revised bid constituted an offer that Weaver & Jacobs had to accept. Weaver & Jacobs

claims to have accepted the bid and memorialized the acceptance by sending over a subcontract

on July 23,2014. RR 23:5-20. It was this very subcontract that made Weaver & Jacob's alleged

8

acceptance unclear and not definite. Mutuality of obligation refers to the parties' mutual

understanding and assent to the expression of their agreement. Weynand v. Weynand, 990

S.W.2d 843,846 (Tex. App.-Dallas 199, pet. denied.). The parties must agree to the same thing,

in the same sense, at the same time. The determination of a meeting of the minds, and thus offer

and acceptance, is based on the objective standard of what the parties said and did. Copeland v.

Alsobrook,3 S.W.2d 598,604 (Tex. App.-San Antonio 1999, pet. denied). The record is clear

that the parties were not on the same page. Sepulveda constantly refers to the fact that no terms

were agreed upon. RR 75:24-76:6; 76:20-21; 79:25-80:4; 80:16-23. Additionally, to further

corroborate the fact there was not mutual understanding between the parties we look to the

commencement date on both the subcontracts with Air Jireh and the Third-party subcontract.

Weaver & Jacobs admits that the commencement date ofthe subcontracts sent to Air Jireh stated

June 25, 2015, despite the subcontract being created on July 23,2015. RR 30:7-23.

Furthermore Weaver & Jacobs believes that the commencement date is not important. RR

30: 11-21. However, on the third party subcontract to Crossroads Mechanical that was necessary

after Air Jireh allegedly breached the contract, the commencement date stated August 20,2013

while the subcontract was dated July 23,2015. RR 32: 13-24. On the third party subcontract to

Crossroads Mechanical, changes were made to the contract to make sure the terms were clear.

RR 33:8-22. Again the fact that Weaver & Jacobs had to make changes to the subcontract when

sending it to Crossroads Mechanical to make sure the parties were clear further corroborates the

fact that there was no mutual agreement between Weaver and Jacobs and Air Jireh and thus no

contract.

Lastly, there could not have been a valid, enforceable contract due to the statute of

frauds. Under the statute of frauds, a promise or agreement is not enforceable unless the promise

9

or agreement, or a memorandum of it, is in writing; and signed by the person to be charged with

the promise or agreement or by someone lawfully authorized to sign for him. Tex. Bus. & Com.

Code Alli. § 26.01. In this case, there was never a written agreement that was signed by any of

the Appellants. A bid was submitted, however, it was never accepted. Rather, a subcontract was

sent by Weaver & Jacobs that contained material changes and thus constituted a counter-offer as

stated previously. There was never any evidence of a written contract signed by AJS Corp., Air

Jireh, or Sepulveda. Conversely, the subcontract with the third-party contained all required

signatures unlike this contract.

Issue 3: The Trial Court erred in ruling that Air Jireh's bid represented Air Jireh's

enforceable promise to perform the Work in exchange for the amount of$125,971.00; that Air

Jireh reasonably foresaw that Weaver & Jacobs would act in reliance on the promise; and that

Weaver & Jacobs did rely on the promise to its detriment.

ARGUMENT & AUTHORITIES

Under Texas law, a plaintiff alleging promissory estoppel must establish (1) a promise;

(2) foreseeable reliance thereon by the promisor; (3) substantial reliance thereon by the

promisee. English v. Fischer, 660 S.W.2d 521, 524 (Tex. 1993). Meanwhile, other Circuits

have held that in order to succeed on a claim of promissory estoppel, a plaintiff must prove: (1) a

promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is

made; (3) reliance both reasonable and foreseeable; and (4) injury due to the reliance. Premium

Hospitality, L.L.c. v. Astra Capital Funding, CIV.A. 12-0779,2014 WL 896807 (E.D. La. Mar.

6,2014). For the reasons stated under Appellants' Argument & Authorities for Issue 2, it is

Appellants' position that the alleged promise by Appellants lacked the clarity necessary for

10

Weaver & Jacobs to claim promissory estoppel, thus barring Weaver & Jacobs from claiming

promissory estoppel.

Issue 4: The Trial Court erred in ruling that Weaver & Jacobs is entitled to all

protections afforded to consumers under the DTP A.

ARUGMENT & AUTHORITIES

The Texas Supreme Court has made clear that "[a]n allegation of a mere breach of

contract, without more, does not constitute a 'false, misleading or deceptive act' in violation of

the DTPA." Hernandez v.lkon Office Solutions, Inc., 306 F. App'x 180, 182 (5th Cir. 2009);

Tony Gullo Motors L L.P. v. Chapa, 212 S.W.3d 299,304 (Tex.2006) (quoting Ashford Dev.,

Inc. v. USLife Real Estate Serv. Corp., 661 S.W.2d 933,935 (Tex. 1983). Texas law allows

DTP A claims alongside contract claims when the defendant makes an initial misrepresentation

that was known at the time of the transaction and made to induce the consumer into the

transaction. Id. In the present case, the evidence is to the contrary in that there was never a

misrepresentation for Weaver & Jacobs to rely upon. There was no evidence presented that

showed that Sepulveda submitted the bid to induce Weaver & Jacobs into the transaction.

Sepulveda testified that he sent requests for submittals to M&M Metals, Mechanical Reps, and

Professional Air Balance indicating his intention to enter into a transaction. RR 78 :2-16; 79:21-

24. Furthermore, Sepulveda informed Chris Brzozowski of Weaver & Jacobs that Air Jireh

would be willing to perform the work on this project, once the two sides could agree as to the

terms. RR 79:25-80: 1-4. Not once, but twice did Sepulveda testify regarding the Appellants'

intention to perform according to the bids submitted. It was not until August 15, 2015, wherein

Sepulveda acknowledged that witout a signed, written contract Air Jireh would not engage in the

11

project. RR 80:16-23. Additionally, the testimony of Kristen Parisher and Javier Martinez

corroborate the fact that Sepulveda and Air Jireh intend to perfonn the work, but not without the

proper understanding between the parties. According to Kristen Parisher, there was a concern

over liability if the terms ofthe subcontract were not correct. RR 85: 18-87:6.

There was never any testimony regarding the DTP A and Plaintiff failed to prove its cause

of action under the DTP A. Weaver & Jacobs does not constitute a "consumer" under the DTPA

due to the type of transaction involved. Further, the Deceptive Trade Practices Act does not

apply to a claim arising out of a written contract ifthe contract relates to a transaction, a project,

or a set of transactions related to the same project involving total consideration by the consumer

of more than $100,000.00. Tex. Bus. & Com. Code Ann. § 17.49. The testimony throughout

trial was regarding a written subcontract. RR 23: 18-20; 42: 13-20. Additionally, the dispute

arose out of three different bids that were submitted to Weaver & Jacobs. All three (3) bids were

for an amount greater than $100,000.00. RR 12:10-14; 41 :23-42:5. The bid that Weaver &

Jacobs allegedly relied upon was for the amount of$125,971.00 RR 32:4-5. Accordingly, the

DTP A does not apply specifically to this transaction and Weaver & Jacobs is not entitled to any

relief under the DTP A.

Issue 5: The Trial Court erred in ruling that Sepulveda submitted a copy of Air Jireh's

resume which contained several representations; that these representations were false; that

Sepulveda made these representations with knowledge of their falsity or recklessly, as positive

assertions, without knowledge oftheir truth; and that Weaver & Jacobs relied on Sepulveda's

false representations. (Argument made only for purposes of continuity and NOT to assert any

relief on behalf of Sepulveda who has filed a Notice of Bankruptcy with the Court)

12

ARGUMENT & AUTHORITIES

A fraud cause of action requires a material misrepresentation, which was false, and which

was either known to be false when made or was asserted without knowledge of its truth, which

was intended to be acted upon, which was relied upon, and which caused injury." Formosa

Plastics Corp. USA v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41,47-48 (Tex.

1998); Sears, Roebuck & Co. v. Meadows, 877 S.W.2d 281,282 (Tex. 1994); *48 DeSantis v.

Wackenhut Corp., 793 S.W.2d 670,688 (Tex.l990), cert. denied, 498 U.S. 1048, 111 S.Ct. 755,

112 L.Ed.2d 775 (1991); see also Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 185

(Tex. 1977). First, a resume was never submitted for Air Jireh. The resume submitted was for

AJS Corp. Javier Martinez, the president of AJS, Corp., clearly states that "this is a resume that

I myself generated for Jireh Services Corporation." RR 62:3-4. For arguments sake, even if the

resume was for Air Jireh, there was no evidence that the jobs on the resume were not performed.

Javier Martinez testified that the resume is "true and correct as to the services perfonned by Air

Jireh Services Corp." RR 61 :24-62:2. Javier Martinez also testified that the company been in

business for the past twenty (20). RR 57:9-58:4. There is no testimony to rebut the statements

of Javier Martinez that the jobs listed on the resume were actually performed, that the resume

was incorrect, that the resume's recitation of'most recent jobs" were false, or that the company

had been in business for over twenty (20) years. Although the jobs listed on the resume, were

some ofthe same jobs listed on the website of AC Plumbing Specialist, Javier Martinez

additionally testified that the entity Air Jireh, also goes by the name of AC Plumbing Specialist.

RR 61 :15-18.; RR 66:19-23. A necessary element of fraud must involve a false representation.

As stated above, there is not any evidence to the contrary that the resume submitted by

Sepulveda was false. The Trial Court erred in ruling that the resume submitted by Sepulveda was false. To his knowledge, they were true as he was given them by his employer, Javier

Martinez, who verified through testimony that they were in fact true. Sepulveda, though perhaps

unaware of whether all the jobs were accurate, had no reason to believe that they were false.

Issue 6: The Trial Court erred in ruling that Sepulveda submitted the bid to Weaver &

Jacobs, in which he represented that Air Jireh would perform the Work in exchange for the sum

of $125,971.00; that these representations were false; that Sepulveda made these representations

with knowledge of their falsity or recklessly, as positive assertions, without knowledge of their

truth; and that Weaver & Jacobs relied on Oskar Sepulveda, Jr's false representations.

(Argument made only for purposes of continuity and NOT to assert any relief on behalf of

Sepulveda who has filed a Notice of Bankruptcy with the Court)

ARGUMENT & AUTHORITIES

A fraud cause of action requires a material misrepresentation, which was false, and which

was either known to be false when made or was asserted without knowledge of its truth, which

was intended to be acted upon, which was relied upon, and which caused injury." Formosa

Plastics Corp. USA v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41,47-48 (Tex.

1998); Sears, Roebuck & Co. v. Meadows, 877 S.W.2d 281,282 (Tex. 1994); *48 DeSantis v.

Wackenhut Corp., 793 S.W.2d 670, 688 (Tex. 1990), cert. denied, 498 U.S. 1048, 111 S.Ct. 755,

112 L.Ed.2d 775 (1991); see also Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 185

(Tex. 1977). However, the mere failure to perform a contract is not evidence of fraud. Schindler

v. Austwell Farmers Coop., 841 S.W.2d 853,854 (Tex. 1992). The Court in Formosa Plastics

held that evidence had to be presented that representations were made with the intent to deceive

and with no intention of performing as represented. See Spoljaric, 708 S.W.2d at 434; Stanfield,

-l3-

14

462 S.W.2d at 272; see also TiO. Stanley Boot Co., 847 S.W.2d at 222; Moreover, the evidence

presented must be relevant to Fonnosa's intent at the time the representation was made.

Spoljaric, 708 S.W.2d at 434.

Weaver & Jacobs fails to meet this burden. Although the Court may have found that Air

Jireh failed to perfonned the contract, there was no evidence presented that showed that Air

Jireh, through Sepulveda, submitted the bid with an intent to deceive and with no intention of

performing as represented. As a matter ofthe fact, the evidence states the contrary. Sepulveda

testified that he sent requests for submittals to M&M Metals, Mechanical Reps, and Professional

Air Balance. RR 78:2-16; 79:21-24. Additionally, Sepulveda informed Chris Brzozowski of

Weaver & Jacobs that Air Jireh would be willing to perfonn the work on this project, once the

two sides could agree as to the terms. RR 79:25-80:4. Not once, but twice did Sepulveda testify

of Appellants' intention to perfonn according to the bids submitted. It was not until August 15,

2015, wherein Sepulveda of Air Jireh refused to perfonn work on the project. RR 80:16-23.

Additionally, the testimony of Kristen Parisher and Javier Martinez corroborates the fact that

Sepulveda and Air Jireh intend to perfonn the work, but not without the proper understanding

between the parties. According to Kristen Parisher, there was a concern over liability ifthe

terms ofthe subcontract were not correct. RR 85:18-87:6

Issue 7: The Trial Court erred in ruling that Sepulveda in the course and scope of his

employment, represented to Weaver & Jacobs that Air Jireh had twenty (20) years experience,

that Air Jireh had perfonned certain jobs, and that Air Jireh would perfonn the Work in

exchange for $125,971.00; that these representations were false; that Sepulveda, in the course

and scope of his employment, intended that Weaver & Jacobs to rely on said representations;

that Sepulveda failed to exercise reasonable care or competence in obtaining and communicating

the representations on behalf of Air Jireh.

15

ARGUMENT & AUTHORITIES

To establish a cause of action for negligent misrepresentation, Plaintiff must prove the

following elements: (1) the representation was made in the course of Defendant's business; (2)

false information was supplied for the guidance of others in their business; (3) Defendant did not

exercise reasonable care or competence in obtaining or communicating the information; and (4)

Plaintiff suffered pecuniary loss by justifiably relying on the representation. Daldav Associates,

L.P. v. Lebar, 391 F. Supp. 2d 472,476 (N.D. Tex. 2005); See Dallas Firefighters Ass'n v. Booth

Research Group, Inc., 156 S.W.3d 188, 194 (Tex.App.-Dallas 2005); Airborne Freight Corp. v.

CR. Lee Enters., 847 S.W.2d 289 (Tex.App.-EI Paso 1993, writ denied). A promise of future

performance constitutes an actionable misrepresentation if the promise was made with no

intention of performing at the time it was made. Schindler v. Austwell Farmers Coop., 841

S.W.2d 853,854 (Tex.1992).

Again, for the reasons stated in the Argument & Authorities under Issue 6, there was no

evidence presented that showed that Sepulveda submitted the bid with an intent to deceive and

with no intention of performing as represented on behalf of Air Jireh. As a matter of the fact, the

evidence states the contrary. Additionally, there is no testimony to rebut the statements of J avier

Martinez that Air Jireh actually perfonned the jobs listed on the resume, that the resume was

incorrect, that the resume's recitation of Air Jireh's "most recent jobs" were false, or that Air

Jireh had been in business for over twenty (20) years.

Issue 8: The Trial Court erred in awarding attorney fees to Weaver & Jacobs.

ARGUMENT & AUTHORITIES

As a general rule, the party seeking to recover attorney's fees carries the burden of proof.

See, e.g., Kimbrough v. Fox, 631 S.W.2d 606, 609 (Tex.App.-Fort Worth 1982, no writ);

16

Corpus Christi Dev. Corp. v. Carlton, 644 S.W.2d 521,523 (Tex.App.-Corpus Christi 1982, no

writ); Bavarian Autohaus, Inc. v. Holland, 570 S.W.2d 110,116 (Tex.Civ.App.-Houston [1st

Dist.] 1978, no writ). The trial court may award those fees that are "reasonable and necessary"

for the prosecution of the suit. See, e.g., Green Tree Acceptance, Inc. v. Pierce, 768 S. W 2d 416,

425 (Tex.App.-Tyler 1989, no writ); Flint &Assoc. v. Intercontinental Pipe & Steel, Inc., 739

S. W2d 622, 624 (Tex.App.-Dallas 1987, writ denied); Rosas v. Bursey, 724 S. W2d 402,

410-11 (Tex.App.-Fort Worth 1986, no writ); Graves v. Sommerfeld, 618 S. W2d 952, 954-55

(Tex.Civ.App.-Waco 1981, writ ref'd n.r.e.). It is Appellant's position that the fees in this case

are not reasonable and necessary as they are more than the actual judgment awarded.

Furthermore, attorney fees were granted based upon Section 38.001 of the Texas Civil Practice

and Remedies Code and Section 17.50 of the Texas Business and Commerce Code. It is

appellant's position that Weaver & Jacobs is not entitled to any protections afforded to

consumers under the DTP A and thus the attorney fees must be segregated. Attorney's fees

attributable to separate causes of action must be segregated unless the claims arise from the same

transaction and are so interrelated that their prosecution or defense entails proof or denial of

essentially the same facts. Villasenor v. Villasenor, 911 S.W.2d 411, 420 (Tex. App. 1995). For

argument's sake, assuming that the separate causes of action alleged by Weaver & Jacobs arise

from the same transaction, they are not so interrelated that their prosecution or defense entails

proof or denial of essentially the same facts. A cause of action under the DTP A requires a party

to be a consumer, which is not required under Breach of Contract, nor Promissory Estoppel.

Thus, additional proof is required for a DTP A transaction than is required under breach of

contract and promissory estoppel. As a result of this segregation, an award of attorney's fees

erroneously based upon evidence of unsegregated fees requires a remand. Stewart Title Guar.

Co. v. Sterling, 822 S.W.2d 1, 11 (Tex. 1991)

17

PRAYER

For the foregoing reasons stated herein above, Appellants respectfully request that the

Court of Appeals reverse the Order of the Trial Court. Appellee requests all other appropriate

relief to which they are entitled both at equity and in law.

Respectfully Submitted, Law Office of Lee Hernandez A Professional Corporation 4100 NW Loop 410, Suite 100 San Antonio, Texas 78229 Tel.: 210.735.4202 Fax: 210.735.4231

State Bar No. 24077285 Attorney for Appellants rene@leehernandez.com

18

CERTIFICATE OF COMPLIANCE

I certify that the above document is in compliance with the Texas Rules of Appellate

Procedure 9.4(2), (3). This document has a total ofS,348 words.

CERTIFICATE OF SERVICE

On the 23rd day of November, 2015, in compliance with the Texas Rules of Appellate

Procedure 9.5(b), I, the undersigned counsel, served this document on the following counsel of

record electronically through the electronic filing manager:

FORDNASSEN & BALDWIN P.C. c/o Christopher Scifres 111 Congress, Suite 1010 Austin, Texas 78701 Telephone: (512) 236-0009 Facsimile: (512) 236-0682 cascifres@fordnassen.com

Rene Zarazua

19

APPENDIX

Final Judgment. Tab A

Findings of Fact and Conclusions ofLaw Tab B

Tex. Bus. & Com. Code § 17.46(a) Tab C

Tex. Bus. & Com. Code Ann. § 17.49 Tab D

Tex. Bus. & Com. Code Ann. § 26.01. Tab E

Air Jireh Bid No. 1 Tab F

Air Jireh Bid No. 2 Tab G

Air Jireh Bid No. 3 Tab H

Subcontract - Air Jireh Tab I

Subcontract - Crossroads Mechanical, Inc Tab J

TAB A

346

Cause No. 13-1O~22,801

WEAVER & JACOBS CONSTRUCTORS, § IN THE DISTRICT COURT OF lNC. § Plaintiff, § § ~ § § nswrrr COUNTY, TEXAS AIR JIREH SERVICES CORPORATION, § HVAC PLUMBING SPECIALIST § CORPORATION AlK/A HVAC PLUMBING § SPECIALIST INC DIB/ A ArR JIREH § SERVICE AIKJ A AIR JIREH SERVICES and § OSKAR SEPULVEDA, JR., § Defendants. § 24TH JUDICIAL DISTRICT

AGREED FINAL JUDGMENT

On February 2, 2015, this case was called for trial. Plaintiff, WEAVER & JACOBS

CONSTRUCTORS, INC., and Defendants. AIR JIREH SERVICES CORPORATION, HVAC

PLUMBING SPECIALIST CORPORATION a!k/a HVAC PLUMBING SPECIALIST INC dib/a

AIRJIREH SERVICE a/k:IaAIR JIREH SERVICES, and OSKAR SEPULVEDA, JR. (collectively,

the 4~DEFENDANTS").announced ready for trial. The matters in controversy between WEAVER &

JACOBS CONSTRUCTORS, INC. and the DEFENDANTS were presented to the Court.

Upon review orthe evidence, the Court granted judgment in favor ofWEA VER & JACOBS

CONSTRUCTORS, INC., and against the DEFENDANTS.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that WEAVER &

JACOBS CONSTRUCTORS, INC. have and recover, jointly and severally, of and from the

DEFENDANTS, AIR JIREH SERVICES CORPORATION, HVAC PLUMBING SPECIALIST

CORPORATION a/k/a HVAC PLUMBING SPECIALIST INC dib/a AIR JIREH SERVICE a/kJa

AIR JIREH SERVlèES, and OSKAR SEPULVEDA, JR., the sum of Sixteen Thousand Five

AGREED FINAL .JUDGMENT ~ Page l 138221.1/2845.002

Hundred Fifty-Six and 00/100 DoUars ($16,556.00), with interest thereon at the rate of five percent

(5%) per year, from the date the final judgment is signed by the Court, until paid.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that WEAVER &

JACOBS CONSTRUCTORS, lNC. have and recover, jointly and severally, of and from the

DEFENDANTS, AIR JIRER SERVICES CORPORATION~ RVAC PLUMBING SPECIALIST

CORPORATION aIkIa RVAC PLUMBING SPECIALIST INC dlbla AIR JIRER SERVICE aIkIa

AIR lIRER SERVICES, and OSKAR SEPULVEDA, JR., pre-judgment interest at the rate offive

percent (5%) per year, accruing from the date the lawsuit was filed, October 3,2013, until the day

before the date on which the final judgment is signed by the Court. As of February 17; 2015, pre-

judgment interest has accrued in the amount of$1,138.51, and will continue to accrue at a rate of

$2.27 per day until the day before the date on which the final judgment is signed by the Court.

IT IS FURTHER ORDERED~ ADJUDGED, AND DECREED that WEAVER &

JACOBS CONSTRUCTORS, lNC. have and recover of and from, jointly and severally, AIRJIREH

SERVICES CORPORATION and nvxc PLUMBING SPECIALIST CORPORATION a!k!a

HV AC PLUMBING SPECIALIST INC d/b/a AlR JIREH SERVICE a/kJa AIR lIREH SERVICES

its reasonable and necessary attorney fees in the amount of Twenty-One Thousand Three Hundred

Fifty-Four and 00/100 Dollars ($21,354.00).ln addition, WEAVER &JACOBS CONSTRUCTORS,

INC. shall conditionally recover the sum of Fifteen Thousand and 00/100 Dollars ($15,000.00) in the

event WEAVER & JACOBS CONSTRUCTORS, INC. prevails on appeal to the court of appeals,

and further conditionally recover Ten Thousand and 00/100 Dollars ($10,000.00) in the event the

Supreme Court of Texas accepts an appeal from the court of appeals and WEAVER & JACOBS

CONSTRUCTORS, INC. prevails on such appeal.

AGREED FINAL JUDGMENT· Page2 t 3&221.11284S.002 347

-------- --

348

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that WEAVER &

JACOBS CONSTRUCTORS, INC. have and recover of and from, jointly and severally, AIR JIREH

SERVICES CORPORATION and HVAC PLUMBING SPECIALIST CORPORA TJON alkIa

HVAC PLUMBING SPECIALIST INC d/b/a AIR JIREH SERVICE a/k/a AIR JIRER SERVICES

post-judgment interest at the rate of fi ve percent (5%) per year, compounded annually, on the amount

of$39,048.51, which represents the judgment amount of$16,556.00 plus pre-judgment interest in

the amount of$1,138.51 and reasonable and necessary attorney fees in the amount of$2I,354.00,

accruing from the date the final judgment is signed by the Court and continuing until the date on

which the judgment is satisfied, at the rate of $5.35 per day.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that WEAVER &

JACOBS CONSTRUCTORS, INC. have and recover of and from OSKAR SEPULVEDA, JR. post-

judgment interest at the rate of five percent (5%) per year, compounded annually, on the amount of

$17,694.51, which represents the judgment amount of$16,556.00 plus pre-judgment interest in the

amount of $1,138.51, accruing from the date the final judgment is signed by the Court and

continuing until the date on which the judgment is satisfied, at the rate of$2.42 per day.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that WEAVER &

JACOBS CONSTRUCTORS. INC. shall be entitled to have all writs of execution and other process

necessary to enforce these judgments against each of the DEFENDANTS, jointly and severally.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all costs of court be

and hereby are taxed against the DEFENDANTS, jointly and severally.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all reliefnot expressly

granted is hereby DENIED. This is a FINAL JUDGMENT and disposes of all claims and

parties.

AGREED FINAL JUDGMENT· Page 3 138221.1/2845.002

349

SIGNEDthiS~aYOf ~ ,2015.

Approved as to Form and Substance:

FORD NASSEN & BALDWIN P.C. LAW OFFICE OF LEE HERNANDEZ

By:. ~ __ By:

Christopher A, Scifres --------------------------

Rene G. Zarazua Texas State Bar No. 24088374 Texas State Bar No. 24077285 Attorney for Plaintiff Attorney for Defendants

AGREED FINAL JUDGMENT. Page 4 138221.112845.002

TAB B

351

Cause No. 13-10~22,801

WEAVER & JACOBS CONSTRUCTORS, § IN THE DISTRICT COURT OF INC. § Plaintiff, § § v. § § DEWITT COUNTY, TEXAS AIR JIREH SERVICES CORPORATION, § HVAC PLUMBING SPECIALIST § CORPORATION AlKJA HVAC PLUMBING § SPECIALIST INC DIBI A AIR JIREH § SERVICE AIKIA AIRJIREH SERVICES and § OSKAR SEPULVEDA. JR.; § Defendants. § 24TH JUDICIAL DISTRICT

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On February 2, 2015; this case was caned for trial. All parties appeared through counsel and

announced ready. The case proceeded to trial. Based on the evidence at trial. the briefs, the

arguments of counsel, and the parties' joint statement of stipulated facts, the Court makes the

following findings of fact and conclusions of law, pursuant to RuIe 296 of the Texas Rules of Civil

Procedure.

I.FINDINGS OF FACT

1. Weaver & Jacobs is a Texas corporation in good standing and authorized to do

business in the State of Texas.

2. HVAC Plumbing Specialist Corporation alk/a HVAC Plumbing Specialist Inc dlb/a

Air Jireh Service a/k/a Air Jireh Services ("Air Jireh") is a Texas corporation authorized to do

business in the State of Texas.

3. Air Jireh uses interchangeably the names "HVAC Plumbing Specialist Corporation,"

"HVAC Plumbing Specialist Inc," "Air Jireh Service," "Air Jireh Services," and "AC Plumbing

Specialists."

FINDINGS 01<' FACT AND CONCLUSIONS OF LA W - Page 1 138554.112845.002

352

4. Oskar Sepulveda, Jr. ("Sepulveda") is an individual who resides in Texas.

5. On April 8, 2013, Weaver & Jacobs entered into a prime contract with Taft

Independent School District ("TISD") for the Taft Independent School District High School

Improvements, Taft, Texas (the "Project").

6. TISO is the owner of the Project, and Weaver & Jacobs agreed to act as the

Construction Manager at Risk for the construction of a new front office. among other improvements.

7. Weaver & Jacobs issued a Notice of Requests for Proposals from Subcontractors and

Suppliers (the "Requests for Proposals").

8. In the Requests for Proposals, Weaver & Jacobs requested bid offers from

subcontractors and suppliers indicating the price for which they would be willing to perfonn certain

scopes of work on, or to supply materials to, the Project.

9. All bid offers were required to be submitted to Weaver & Jacobs by June 26, 2013.

10. On June 26, 2013, at 2:09 p.m., Sepulveda, who is a project manager for Air Jireh,

sent an e-mail to Weaver & Jacobs.

11. Air Jireh attached to its June 26, 2013, e-mail a bid offer (the "Original Bid") to

furnish labor and materials for the heating, ventilation, and air conditioning systems for the Project

(the "Work") in exchange for the sum of$147,732.00.

12. The Original Bid included the cost for certain digital controls (the "Digital Controls")

to be installed as part of the Work.

13. Air Jíreh sent with the Original Bid a copy of Air Jireh's résumé.

14. The Digital Controls were a single-source specification, which means that every offer

to perform the work submitted to Weaver & Jacobs was to include the Digital Controls at the same

cost of$23,561.00.

FINDiNGS OF FACT AND CONCLUSIONS OF LAW· Page 2 I38554.lI2845.002

353

15. Sepulveda concluded his June 26, 20 B, e-mail by thanking Weaver & Jacobs for the

"opportunity" and expressing that Air Jíreh "look] ed] forward to working for [Weaver & Jacobs] in

the near future."

16. After Weaver & Jacobs received and compiled all of the subcontractor offers for the

entire Project, it was necessary for Weaver & Jacobs to engage in value engineering to reduce the

Project's price.

17. On June 26, 2013, at2:29 p.m., Weaver&Jacohs sent Air Jireh an e-mail asking Air

Jireh to confirm that it had included in its Original Bid the Digital Controls at a price of "around

$25k,"

18. On June26, 2013, at2:56 p.m., Air Jireh sent Weaver &Jacobsane~mailconfirming

that the Digital Controls were included in its Original Bid at a price of $24,986,00.

19. As part of a comprehensive budget reduction plan, Weaver & Jacobs and TISD agreed

to replace the Digital Controls with less expensive wall-mounted thermostats (the "Thermostats").

20. On or about June 26, 2013, Weavér & Jacobs submitted its guaranteed maximum

price (the "'GMP") to TISD.

21. On July 7,2013, at 4:53 p.m., Weaver & Jacobs sent Air Jireh an e-mail informing

Air Jireh that Weaver & Jacobs was replacing the Digital Controls with the Thermostats.

22. On July 7,2013, at 6:40 p.m., Air Jireh sent Weaver & Jacobs an e-mail indicating

that the Original Bid included the Digital Controls at a price of$23,561.00 and three Thermostats at

a price of$475 each.

23. On July 9, 2013. Air Jireh submitted to Weaver & Jacobs a revised bid offer in the

amount of $132,670.00 (the "Revised Bid"). However, the Revised Bid's price did not properly

recognize the full deduction for substituting the Thermostats tor the Digital Controls.

FINDINGS OF FACT AND CONCLUSIONS OF LAW ~Page 3 138554.112845.002

354

24. Air Jireh agreed to submit a bid offer in the amount of$125,971.00 (the Original Bid

of$147,732.00 minus $23,561.00 for the Digital Controls plus $1,800.00 for the Thermostats).

25. Weaver & Jacobs informed Air Jireh that it would accept Air Jireh's $125,971.00

offer and would issue a subcontract in the amount of$125,971.00 to Air Jíreh to memorialize their

agreement.

26. On July 16.2013, Air Jireh sent Weaver & Jacobs an e-mail indicating that Air Jireh

had "revised [the] HVAC proposal with programmable t-stats in lieu of the controlsl.]"

27. Attached to Air Jireh' s July 16, 2013, e-mail was Air Jireh' s corrected bid offer (the

"Corrected Bid Offer"). which properly substituted the cost of the Digital Controls with the cost of

the Thermostats, but which was incorrectly dated "June 26,2013."

28. In the Corrected Bid Offer, Air Jireh offered to perform the Work in exchange for

amount of$125,971.00.

29. Air Jireh's July 16, 2013, e-mall concluding by thanking Weaver & Jacobs for "the

opportunity" and stating that Air Jireh "lookjed] forward to working for [Weaver & Jacobs]."

30. Weaver & Jacobs accepted the Corrected Bid Offer.

31. On July 23, 2013, Weaver & Jacobs sent Air Jireh a subcontract in the amount of

$125,971.00 (the "Subcontract"), which communicated Weaver & Jacobs' acceptance of the

Corrected Bid Offer.

32. The following provision was included in the Subcontract on page six:

"EXCLUSIONS: Per quote dated 6/26/13."

33. On August 5, 2013, Weaver & Jacobs sent an e-mail to all of the Project's

subcontractors, including Air Jireh, which stated that each recipient had recently contracted with

Weaver & Jacobs.

FINDINGS OF FACT AND CONCLUSIONS OF LA W • Page 4 138554.1/2845.002

355

34. In its August 5, 2013, e-mail, Weaver& Jacobs asked Air Jireh to provide submittals

or shop drawings to Weaver & Jacobs by August 19, 2013, for the materials and equipment it would

be furnishing to the Project (the "Request for Submittals"), again communicating Weaver & Jacobs'

acceptance of the Corrected Bid Offer.

35. On or about August 10,2013, after not receiving a response to the August 5, 2013,

request for submittals. Chris Brzozowski ("Brzozowski"), Weaver & Jacobs' project manager,

contacted Air Jíreh via telephone to seek assurances that Air Jíreh still planned to perform the Work.

During the telephone conversation, Sepulveda represented to Weaver & Jacobs that Air Jireh would

perfonn the Work.

36. On or about August 15, 2013, Brzozowski again contacted Air Jíreh via telephone and

spoke with Sepulveda. During that telephone conversation, Sepulveda represented that Air Jireh

would neither execute the Subcontract nor perform the Work as it had promised in the Corrected Bid

Offer.

37. Weaver & Jacobs was forced to enter into a subcontract with a third party to perform

the Work for the amount of$142,347.00, which was $16,556.00 more than the amount agreed to by

Air Jireh in the Corrected Bid Offer for the performance of the Work.

38. On or about January 23,2013, HVAC Plumbing Specialist Inc filed with the Bexar

County Clerk an assumed name certificate whereby HVAC Plumbing Specialist Inc would conduct

business as "Air Jíreh Service" (tbe "Assumed Name Certificate"). In the Assumed Name

Certificate, the address for HVAC Plumbing Specialist Inc is listed as "5122 Leon Hardt, San

Antonio, TX 78233." Richard B. Can' signed the Assumed Name Certificate as "officer, general

partner, manager, member. representative, or attorney-in-fact."

FINDINGS OF FACT AND CONCLUSIONS OF LA W - Page 5 138554.1/2845.002

356

II. CONCLUSIONS OF LAW

39. A valid, enforceable contract was formed between Weaver & Jacobs and Air Jireh

after Weaver & Jacobs accepted Air Jireh's Corrected Bid Offer to perform the Work in exchange

for the sum of$125,791.00. Air Jíreh breached its contract with Weaver & Jacobs by refusing to

perform the Work. Air Jireh' s breach of contract caused injury to Weaver & Jacobs in the amount of

$16,556.00. Air Jireh failed to establish by a preponderance orthe evidence that it has any valid

excuse or defense to liability for its material breach of its contractual obligations to Weaver &

Jacobs.

40. Air Jireh's Corrected Bid Offer in the amount of$125,971.00 represented Air Jireh's

enforceable promise to perform the Work in exchange for that amount. Air Jireh reasonably foresaw

that Weaver & Jacobs would act in reliance on the promise, and Weaver & Jacobs did, in fact, rely

on the promise to its detriment in calculating the GMP for the Project As a direct and proximate

result of Air Jíreh's refusal to perform the Work as promised, Weaver & Jacobs was damaged in the

amount of$16.556.00. Air Jireh failed to establish by a preponderance of the evidence that it has any

valid excuse or defense to liability for its failure to fulfill its promise to perform the Work.

41. Weaver & Jacobs is a consumer under the Texas Deceptive Trade Practices Act, Tex.

Bus. & Com. Code § 17.41 et seq. (the "DTP A"), because it is a corporation that sought to purchase

from Air Jireh goods and services needed to perform the Work on the Project. Weaver & Jacobs is

thus entitled to all protections afforded to consumers under the DTP A. Air Jireh can be sued under

the DTP A because it sells and installs HVAC systems and provides service for existing systems. By

offering to perform the Work on the Proj eet in exchange for the sum of $125,971.00, and then orally

repudiating its proposal, Air Jireh engaged in false, misleading, and deceptive acts in the conduct of

its trade and in violation of Tex. Bus. & Com. Code § 17.46(a). Air Jireh's conduct constitutes false,

FINDINGS OF FACT AND CONCLUSIONS OF LAW· Page 6 138554.1/2845.002

357

misleading, and deceptive acts and practices included in the "laundry list" ofDTPA violations. Such

"laundry list" violations include (1) advertising goods or services with the intent not to sell them as

advertised and (2) representing that an agreement confers or involves rights, remedies, or obligations

that it does not. Weaver & Jacobs relied on Air Jireh's false, misleading, and deceptive acts to its

detriment by using Air Jireh's proposal to compute its GMP for the Project. Air Jireh's conduct

forced Weaver & Jacobs to contract with another subcontractor at a substantially higher contract

price than that which was promised by Air Jireh, Air Jireh is the producing cause of Weaver &

Jacobs' damages in the amount of$16,5 56.00. Air Jireh failed to establish by a preponderance of the

evidence that it has any valid excuse or defense to liability for its false, misleading, and deceptive

acts.

42. Sepulveda included with Air Jíreh's Original Bid offer a copy Air Jíreh's résumé.

The résumé contained several false representations, including the assertion that Air Jíreh had been

doing business in the San Antonio area for the past 20 years and a recitation of certain "most recent

jobs." Sepulveda also submitted the Corrected Bid Offer to Weaver & Jacobs, in which he

represented that Air Jíreh would perform the Work in exchange for the sum of$125,971.00. Further,

on or about August 10, 2013, Sepulveda represented to Weaver & Jacobs that Air Jíreh would

perform the Work as promised in the Corrected Bid Offer. These representations were material in

that Weaver & Jacobs relied on the representations to make its decision to accept Air Jireh's bid

offer and would not have done so absent the representations. These representations were false.

Sepulveda made these representations with knowledge of their falsity or recklessly, as positive

assertions, without knowledge of their truth. Weaver & Jacobs relied on Sepulveda's false

representations in calculating its GMP and, after Air Jireh refused to perform the Work, Weaver &

Jacobs was forced to subcontract with a third party to perform the Work, resulting in damages to

FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 7 138554.112845.002

358

Weaver& Jacobs in the amount of$16,556.00. Sepulveda failed to establish by a preponderance of

the evidence that he has any valid excuse or defense to liability for his fraudulent representations to

Weaver & Jacobs.

43. Sepulveda represented to Weaver & Jacobs that Air Jireh had 20 years' experience

doing business in the San Antonio area, that Ail'Jireh had performed certain recent jobs, and that Air

Jireh would perform the Work in exchange for $125,971.00. These representations were false, and

Sepulveda intended that Weaver & Jacobs rely on the representations. Sepulveda failed to exercise

reasonable care or competence in obtaining and communicating these representations. Sepulveda

intended that Weaver & Jacobs use these representations as guidance. Weaver & Jacobs reasonably

and justifiably relied on Sepulveda's false representations to its detriment, resulting in damages to

Weaver & Jacobs in the amount of $16,556.00. Sepulveda failed to establish by a preponderance of

the evidence that he has any valid excuse or defense to liability for his negligent misrepresentations

to Weaver & Jacobs.

44. All conditions precedent to Weaver & Jacobs' entitlement to recovery have been

performed. have occurred, or have been excused.

45. Weaver & Jacobs has established by a preponderance of the evidence that the

damages it incurred were reasonable and necessary to perform the Work after Air Jireh refused to

execute the Subcontract or perform the Work. Weaver & Jacobs is entitled to recover from Air Jireh

and Sepulveda, jointly and severally) damages in the amount of $16,556.00.

46. Based on the acts and/or omissions of Air Jireh, Weaver & Jacobs is entitled, pursuant

to Section 38.001 et seq. of the Texas Civil Practice and Remedies Code, Section 17.50(d) of the

Texas Business and Commerce Code, and all other applicable laws, to recover from the Air Jireh its

FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 8 138554.112845.002

359

reasonable attorney fees and costs incurred in connection with this dispute and in pursuing its claim,

in the amount of$21,354.00.

47. Weaver & Jacobs is entitled to recover from Air Jíreh and Sepulveda, jointly and

severally, pre-judgment interest at the rate of five percent (5%) per year, accruing from the date the

lawsuit was filed, October 3,2013, until the day before the date on which the final judgment is

signed by the Court.

48. Weaver & Jacobs is entitled to recover from Air Jireh post-judgment interest at the

rate oftive percent (5%) per year, compounded annually, on its damages of$16,556.00 plus any pre-

judgment interest that has accumulated on such damages, and on its attorney fees of$21,354.00,

accruing from the date the final judgment is signed by the Court and continuing until the date on

which the judgment is satisfied.

49. Weaver & Jacobs is entitled to recover from Sepulveda post-judgment interest at the

rate of'five percent (5%) per year, compounded annually, on its damages of$16,556.00 plus any pre-

judgment interest that has accumulated on such damages, accruing from the date the final judgment

is signed by the Court and continuing until the date on which the final judgment is satisfied.

5O. Weaver & Jacobs is entitled to have all writs of execution and other process necessary

to enforce these judgments against each of the defendants.

51. Any of the foregoing conclusions oflaw that are more properly considered findings of

fact are also adopted by the Court as findings of fact.

SIGNED this ~y Of _ _.;..&~~.¿:,;..a~,,-,-- , 2015.

FILED ~~~---~ a~ .L ...J•.!. O}CloCk_~M

MAR 2 8 2015 FINDINGS OF FACT AND CONCLUSIONS OF LAW - Pa . 138554.1/2845.002

B~~~~~::'$'l

TAB C § 17.46. Deceptive Trade Practices Unlawful, TX BUS & COM § 17.46

¡- < KeyCite Yellow Flag - Negative Treatment Unconstitutional or Preempted Prior Version Limited on Preemption Grounds by Lewkut v. Stryker Corp., S.D.Tex., Apr. 16, 2010 J ~ KeyCite Yellow Flag - Negative Treatment Proposed Legislation

Vernon's Texas Statutes and Codes Annotated Business and Commerce Code (Refs &Annos)

Title 2. Competition and Trade Practices Chapter 17. Deceptive Trade Practices (Refs & Annos)

Subchapter E. Deceptive Trade Practices and Consumer Protection (Refs & Annos)

V.T.C.A., Bus. & C. § 17.46

§ 17.46. Deceptive Trade Practices Unlawful

Effective: September 1, 2015 Currentness

(a) False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful and are subject to action by the consumer protection division under Sections 17.47, 17.58, 17.60, and 17.61 of this code.

(b) Except as provided in Subsection (d) of this section, the term "false, misleading, or deceptive acts or practices" includes, but is not limited to, the following acts:

(1) passing off goods or services as those of another;

(2) causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services;

(3) causing confusion or misunderstanding as to affiliation, connection, or association with, or certification by, another;

(4) using deceptive representations or designations of geographic origin in connection with goods or services;

(5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which the person does not;

(6) representing that goods are original or new if they are deteriorated, reconditioned, reclaimed, used, or secondhand;

(7) representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another;

(8) disparaging the goods, services, or business of another by false or misleading representation of facts;

VVestlawNe:d © 2015 Thomson Reuters. 1\10 claim to original U.S. Government Works. 1 § 17.46. Deceptive Trade Practices Unlawful, TX BUS & COM § 17.46

(9) advertising goods or services with intent not to sell them as advertised;

(10) advertising goods or services with intent not to supply a reasonable expectable public demand, unless the advertisements disclosed a limitation of quantity;

(11) making false or misleading statements of fact concerning the reasons for, existence of, or amount of price reductions;

(12) representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law;

(13) knowingly making false or misleading statements offact concerning the need for parts, replacement, or repair service;

(14) misrepresenting the authority of a salesman, representative or agent to negotiate the final terms of a consumer transaction;

(15) basing a charge for the repair of any item in whole or in part on a guaranty or warranty instead of on the value ofthe actual repairs made or work to be performed on the item without stating separately the charges for the work and the charge for the warranty or guaranty, if any;

(16) disconnecting, turning back, or resetting the odometer of any motor vehicle so as to reduce the number of miles indicated on the odometer gauge;

(17) advertising of any sale by fraudulently representing that a person is going out of business;

(18) advertising, selling, or distributing a card which purports to be a prescription drug identification card issued under Section 4151.152, Insurance Code, in accordance with rules adopted by the commissioner of insurance, which offers a discount on the purchase of health care goods or services from a third party provider, and which is not evidence of insurance coverage, unless:

(A) the discount is authorized under an agreement between the seller of the card and the provider of those goods and services or the discount or card is offered to members of the seller;

(B) the seller does not represent that the card provides insurance coverage of any kind; and

(C) the discount is not false, misleading, or deceptive;

(19) using or employing a chain referral sales plan in connection with the sale or offer to sell of goods, merchandise, or anything of value, which uses the sales technique, plan, arrangement, or agreement in which the buyer or prospective buyer is offered the opportunity to purchase merchandise or goods and in connection with the purchase receives the seller's promise or representation that the buyer shall have the right to receive compensation or consideration in any form for furnishing to the

WestlawNe.xr © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 § 17.46. Deceptive Trade Practices Unlawful, TX BUS & COM § 17.46 -------------_.

seller the names of other prospective buyers if receipt of the compensation or consideration is contingent upon the occurrence of an event subsequent to the time the buyer purchases the merchandise or goods;

(20) representing that a guaranty or warranty confers or involves rights or remedies which it does not have or involve, provided, however, that nothing in this subchapter shall be construed to expand the implied warranty of merchantability as defined in Sections 2.314 through 2.318 and Sections 2A.212 through 2A.216 to involve obligations in excess of those which are appropriate to the goods;

(21) promoting a pyramid promotional scheme, as defined by Section 17.461;

(22) representing that work or services have been performed on, or parts replaced in, goods when the work or services were not performed or the parts replaced;

(23) filing suit founded upon a written contractual obligation of and signed by the defendant to pay money arising out of or based on a consumer transaction for goods, services, loans, or extensions of credit intended primarily for personal, family, household, or agricultural use in any county other than in the county in which the defendant resides at the time ofthe commencement of the action or in the county in which the defendant in fact signed the contract; provided, however, that a violation of this subsection shall not occur where it is shown by the person filing such suit that the person neither knew or had reason to know that the county in which such suit was filed was neither the county in which the defendant resides at the commencement of the suit nor the county in which the defendant in fact signed the contract;

(24) failing to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed;

(25) using the term "corporation," "incorporated," or an abbreviation of either of those terms in the name of a business entity that is not incorporated under the laws of this state or another jurisdiction;

(26) selling, offering to sell, or illegally promoting an annuity contract under Chapter 22, Acts of the 57th Legislature, 3rd Called Session, 1962 (Article 6228a-S, Vernon's Texas Civil Statutes), with the intent that the annuity contract will be the subject of a salary reduction agreement, as defined by that Act, if the annuity contract is not an eligible qualified investment under that Act or is not registered with the Teacher Retirement System of Texas as required by Section 8A of that Act;

(27) taking advantage of a disaster declared by the governor under Chapter 418, Government Code, by:

(A) selling or leasing fuel, food, medicine, or another necessity at an exorbitant or excessive price; or

(B) demanding an exorbitant or excessive price in connection with the sale or lease of fuel, food, medicine, or another necessity;

<Text of (b)(28), as added by Acts 2015, 84th Leg., ch. 1023 (H.B. 1265), § 1>

I/JestlavvNext © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 § 17.46. Deceptive Trade Practices Unlawful, TX BUS & COM § 17.46

(28) delivering or distributing a solicitation in connection with a good or service that:

(A) represents that the solicitation is sent on behalf of a governmental entity when it is not; or

(B) resembles a governmental notice or form that represents or implies that a criminal penalty may be imposed if the recipient does not remit payment for the good or service;

<Text of (b)(28), as added by Acts 2015, 84th Leg., ch. 1080 (H.B. 2573), § 1>

(28) using the translation into a foreign language of a title or other word, including "attorney," "lawyer," "licensed," "notary," and "notary public," in any written or electronic material, including an advertisement, a business card, a letterhead, stationery, a website, or an online video, in reference to a person who is not an attorney in order to imply that the person is authorized to practice law in the United States.

(29) delivering or distributing a solicitation in connection with a good or service that resembles a check or other negotiable instrument or invoice, unless the portion of the solicitation that resembles a check or other negotiable instrument or invoice includes the following notice, clearly and conspicuously printed in at least 18-point type:

"SPECIMEN-NON-NEGOTIABLE";

(30) in the production, sale, distribution, or promotion of a synthetic substance that produces and is intended to produce an effect when consumed or ingested similar to, or in excess of, the effect of a controlled substance or controlled substance analogue, as those terms are defined by Section 481.002, Health and Safety Code:

(A) making a deceptive representation or designation about the synthetic substance; or

(B) causing confusion or misunderstanding as to the effects the synthetic substance causes when consumed or ingested; or

(31) a licensed public insurance adjuster directly or indirectly soliciting employment, as defined by Section 38.01, Penal Code, for an attorney, or a licensed public insurance adjuster entering into a contract with an insured for the primary purpose of referring the insured to an attorney without the intent to actually perform the services customarily provided by a licensed public insurance adjuster, provided that this subdivision may not be construed to prohibit a licensed public insurance adjuster from recommending a particular attorney to an insured.

(c)(I) It is the intent of the legislature that in construing Subsection (a) of this section in suits brought under Section 17.47 of this subchapter the courts to the extent possible will be guided by Subsection (b) of this section and the interpretations given by the Federal Trade Commission and federal courts to Section 5(a)(I) of the Federal Trade Commission Act [15 U.S.C.A. § 45(a)(I)].

(2) In construing this subchapter the court shall not be prohibited from considering relevant and pertinent decisions of courts in other jurisdictions.

._-_._-------------_.

'Nestla'NNe::.::t © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4-

§ 17.46. Deceptive Trade Practices Unlawful, TX BUS & COM § 17.46 ._--_._--------------------------

(d) For the purposes of the relief authorized in Subdivision (1) of Subsection (a) of Section 17.50 of this subchapter, the term "false, misleading, or deceptive acts or practices" is limited to the acts enumerated in specific subdivisions of Subsection (b) of this section.

Credits Added by Acts 1973, 63rd Leg., p. 322, ch. 143, § 1, eff. May 21, 1973. Amended by Acts 1977, 65th Leg., p. 601, ch. 216, §§ 2, 3, eff. May 23,1977; Acts 1977, 65th Leg., p. 892, ch. 336, § 1, eff. Aug. 29,1977; Acts 1979, 66th Leg., p. l327, ch. 603, § 3, eff. Aug. 27, 1979; Acts 1987, 70th Leg., ch. 280, § 1, eff. Sept. 1, 1987; Acts 1993, 73rd Leg., ch. 570, § 6, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 414, § 3, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 463, § 1, eff. Sept. 1, 1995; Acts 2001, 77th Leg., ch. 962, § 1, eff. Sept. 1,2001; Acts 2001, 77th Leg., ch. 1229, § 27, eff. June 1,2002; Acts 2003, 78th Leg., ch. 1276, § 4.001(a), eff. Sept. 1,2003; Acts 2005, 79th Leg., ch. 728, § 11.101, eff. Sept. 1,2005; Acts 2007, 80th Leg., ch. 1230, § 26, eff. Sept. 1,2007; Acts 2015, 84th Leg., ch. 1023 (H.B. 1265), § 1, eff Sept. 1,2015; Acts 2015, 84th Leg., ch. 1080 (H.B. 2573), § 1, eff. Sept. 1,2015.

Notes of Decisions (1318)

V. T. C. A., Bus. & C. § 17.46, TX BUS & COM § 17.46 Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

V'Iestla','v'Next © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

TAB D § 17.49. Exemptions, TX BUS & COM § 17.49

Vernon's Texas Statutes and Codes Annotated Business and Commerce Code (Refs & Annos)

Title 2. Competition and Trade Practices Chapter 17. Deceptive Trade Practices (Refs & Annos)

Subchapter E. Deceptive Trade Practices and Consumer Protection (Refs & Annos)

V.T.C.A., Bus. & C. § 17-49

§ 17.49. Exemptions

Effective: May 28, 2011 Currentness

(a) Nothing in this subchapter shall apply to the owner or employees of a regularly published newspaper, magazine, or telephone directory, or broadcast station, or billboard, wherein any advertisement in violation of this subchapter is published or disseminated, unless it is established that the owner or employees of the advertising medium have knowledge of the false, deceptive, or misleading acts or practices declared to be unlawful by this subchapter, or had a direct or substantial financial interest in the sale or distribution of the unlawfully advertised good or service. Financial interest as used in this section relates to an expectation which would be the direct result of such advertisement.

(b) Nothing in this subchapter shall apply to acts or practices authorized under specific rules or regulations promulgated by the Federal Trade Commission under Section 5( a)(1) ofthe Federal Trade Commission Act [15 U.S.C.A. 45 (a)( 1) ]. The provisions of this subchapter do apply to any act or practice prohibited or not specifically authorized by a rule or regulation of the Federal Trade Commission. An act or practice is not specifically authorized if no rule or regulation has been issued on the act or practice.

(c) Nothing in this subchapter shall apply to a claim for damages based on the rendering of a professional service, the essence of which is the providing of advice, judgment, opinion, or similar professional skill. This exemption does not apply to:

(1) an express misrepresentation of a material fact that cannot be characterized as advice, judgment, or opinion;

(2) a failure to disclose information in violation of Section 17.46(b )(24);

(3) an unconscionable action or course of action that cannot be characterized as advice, judgment, or opinion;

(4) breach of an express warranty that cannot be characterized as advice, judgment, or opinion; or

(5) a violation of Section 17.46(b )(26).

(d) Subsection (c) applies to a cause of action brought against the person who provided the professional service and a cause of action brought against any entity that could be found to be vicariously liable for the person's conduct.

'v\festta'lI"Ne.xt'© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 17.49. Exemptions, TX BUS & COM § 17.49

(e) Except as specifically provided by Subsections (b) and (h), Section 17.50, nothing in this subchapter shall apply to a cause of action for bodily injury or death or for the infliction of mental anguish.

(t) Nothing in the subchapter shall apply to a claim arising out of a written contract if:

(1) the contract relates to a transaction, a project, or a set of transactions related to the same project involving total consideration by the consumer of more than $100,000;

(2) in negotiating the contract the consumer is represented by legal counsel who is not directly or indirectly identified, suggested, or selected by the defendant or an agent of the defendant; and

(3) the contract does not involve the consumer's residence.

(g) Nothing in this subchapter shall apply to a cause of action arising from a transaction, a project, or a set of transactions relating to the same project, involving total consideration by the consumer of more than $500,000, other than a cause of action involving a consumer's residence.

(h) A person who violates Section 17.46(b)(26) is jointly and severally liable under that subdivision for actual damages, court costs, and attorney's fees. Subject to Chapter 41, Civil Practice and Remedies Code, exemplary damages may be awarded in the event offraud or malice.

(i) Nothing in this subchapter shall apply to a claim against a person licensed as a broker or salesperson under Chapter 1101, Occupations Code, arising from an act or omission by the person while acting as a broker or salesperson. This exemptiori does not apply to:

(1) an express misrepresentation of a material fact that cannot be characterized as advice, judgment, or opinion;

(2) a failure to disclose information in violation of Section 17.46(b )(24); or

(3) an unconscionable action or course of action that cannot be characterized as advice, judgment, or opinion.

Credits Added by Acts 1973, 63rd Leg., p. 322, ch. 143, § 1, eff. May 21, 1973. Amended by Acts 1995, 74th Leg., ch. 414, § 4, eff. Sept. 1, 1995; Acts 2001, 77th Leg., ch. 1229, § 28, eff. June 1,2002; Acts 2003, 78th Leg., ch. 1276, § 4.001(b), eff. Sept. 1, 2003; Acts 2011, 82nd Leg., ch. 189 (S.B. 1353), § 1, eff. May 28,2011.

Notes of Decisions (37)

V. T. C. A., Bus. & C. § 17.49, TX BUS & COM § 17.49

Westla'NNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 § 17.49. Exemptions, TX BUS & COM § 17.49

Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

VVestl.'l'NNe:d © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

TAB E § 26.01. Promise or Agreement Must Be in Writing, TX BUS & COM § 26.01

Vernon's Texas Statutes and Codes Annotated Business and Commerce Code (Refs &Annos)

Title 3. Insolvency, Fraudulent Transfers, and Fraud Chapter 26. Statute of Frauds

V.T.C.A., Bus. & C. § 26.01

§ 26.01. Promise or Agreement Must Be in Writing

Effective: September 1, 2005 Currentness

(a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is

(1) in writing; and

(2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.

(b) Subsection (a) of this section applies to:

(1) a promise by an executor or administrator to answer out of his own estate for any debt or damage due from his testator or intestate;

(2) a promise by one person to answer for the debt, default, or miscarriage of another person;

(3) an agreement made on consideration of marriage or on consideration ofnonmarital conjugal cohabitation;

(4) a contract for the sale of real estate;

(5) a lease of real estate for a term longer than one year;

(6) an agreement which is not to be performed within one year from the date of making the agreement;

(7) a promise or agreement to pay a commission for the sale or purchase of:

(A) an oil or gas mining lease;

(B) an oil or gas royalty;

VVestla;NNext' © 2015 Thomson Reuters. No claim to original U.S. Government Works.

§ 26.01. Promise or Agreement Must Be in Writing, TX BUS & COM § 26.01

(C) minerals; or

(D) a mineral interest; and

(8) an agreement, promise, contract, or warranty of cure relating to medical care or results thereof made by a physician or health care provider as defined in Section 74.001, Civil Practice and Remedies Code. This section shall not apply to pharmacists.

Credits Acts 1967, 60th Leg., vol. 2, p. 2343, ch. 785, § 1. Amended by Acts 1977, 65th Leg., p. 2053, ch. 817, § 21.01, eff. Aug. 29, 1977; Acts 1987, 70th Leg., ch. 551, § 1, eff. Aug. 31,1987; Acts 2005, 79th Leg., ch. 187, § 1, eff. Sept. 1,2005.

Notes of Decisions (2145)

V. T. C. A., Bus. & C. § 26.01, TX BUS & COM § 26.01 Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

Westla'NNext © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

TAB F

Air Jirtb services SBE, MBE. HUB çcrtined~ 8 (a)

The Airconditioldng 1Plumbing Specialist 5122 Leonhardt, San ARwoio, TX 78233 Phone: (210) 590-0119 Fax: (210) 590-7789 MECHANICAL~PLUMBING-SlTE UTJLITIES

Name: We2Ver &. ":leobs Constructors, Inc, Dilte: June l6. lOll Address: 301 Coopeflitlve Way Phone: (361) 217..,300 Cil)', Stnte &; Zip:Cuel'll, TI( 77954 Fax: (;.JU)271·'174 B-MaH: BlUItt Jacobs

TAn lSD .Front Package C Scope of Work; We Itre bidding Oll tbe HVAC as per pbllS

KVAC I. Provide snd Install (3) frIOftOPunlta. 2. Provide and In,taU (3) emaust lims. 3. Pr(lVide lUId Install (3) Jmoke detectørll. 4, Provide and In!tøll Bner plenums. 5. Provide alld lnstøll %" \'!/I'apped shettmetal ductwork. 6. Provide anel JOBtall PVC l!OndtUBate. '1. Pl'f)vlde aud Imtall all ¡rilles and ¡flftluerll. 8. 'rovIde lIi~blllalleetest. 9. Provide controls syslem. tO. Provide pennit, erane. and 110 tu Oll _feriat --------._:;_----------------------_._----

Blectrlc¡¡J switches, disconnects, motor sl¡¡¡tcrs for e¡¡haust fans or HVAC equipment, conduit pipe lIlld interlock ccnnectíens OOCWIlCIl làll$ Is oot part of thi;¡ bid.

2 Roof Ilnd wall peneu-atÎollS, roof curb leveling, mopin¡¡. lIashing anli sealing Is l'lot plirt oftbis bid. 1'0 be provided by foofer or genemlcootmctor, 3 Concrete slab, or hUl.IS£'keeplllgpad tbr oondenser. alt hlmdlers Dí Illly equipment, kl IlOt part of this bid. ( Genel'lll Contractor)

4 Wllldt:d angle iron under mofcurb tur l\Irucl.llral support is not par of this bid. (by OC) 5 Any pilltrorm, eoneretc slab, for water h.erúers, or any equipment is oot part oftbis bid. (by Ge)

Payment Terms; Acceptance: Thil aboYe prices.,spedfielttions lIud oolldllilln. are satlsfactlll'Y and II~ meby IItcctlted.

YOIl fife ftutllorlzed to do tbe work JlS Jp«,lfled. Payment will be mde ~ outlined .bove.

Autholizcd Acceptance

Company Representative Oskar Sepulvcd.

------~-----------------------

TAB G

Air Jirell services SBE, MBE, HUB Certified, 8 (a)

The Airconditioning I Plumbing Specialist 5122 Leonhardt, San Antonio, TX 78233 Phone: (210) 590-0119 Fax: (210) 590-7789 MECHANICAL-PLUMBING-SITE UTILITIES

Name: Weaver & Jacobs Constructors, Inc, Date: June 26.2013 Address: JOl Cooperative Way Phone: (361) 277~9JOO

Cily, State & Zip: Cuero, TX 71954 Fax: (36J) 217~9274

E~MaU: Brant Jacobs

Job Name: TAFT ISO Front Package C Scope of Work: We are bidding on the HVAC as per plans

IIVAC I. Provide and Install (3) rooftop units. 2. Provide ilnd Install (3) exbaust fans. J. Provide and Install (3) smoke detectors. 4. Provide aud Install liner plenums. 5. Provide and InstaD 2" wrapped sheetmetlll ductwork. 6. Provide and Install PVC condensate, 1. Provide and Install all grilles Bnd diffusers. 8. Provide airbalance test. 9. Provide permit. crane, Hnd uo tfIX on material.

S132,67UO

** AL TERNATES** I. 'Provide lind Install DOC controls for rooftop units.

ADD $15.062.00 ----------_._--_ ..._._._,------------

Exclusions ---,-----,,--,-------,---

Electrical switches. disconnects, motor starters for exhaust fans or HVAC equipment, conduit pipe and interlock connections between fans is not part of this bid.

2 Roof and wall penetrations, roof curb leveling, moping, flashing and sealing is l'lOf part of this bid. To be provided by roofer at general contractor.

3 Concrete slab, or housekeeping pad for condenser. air handlers or any equipment, is not part of'his bid. ( General Contractor)

4 Welded angle Iron under roof curb for structural support Is not pitt of this bid. (by OC) S Any platform, concrete slab, for water beaters, or any equipment is not part anhis bid. (by OC)

Payment Terms: Acceptance: The above priees. specmcations and conditions are satisfactory llnd lire bereby accepted.

Vou are authorized to do tbe work as specified. Paymeut will be made as outlined above.

r----------- _

Authorized Acceptance Date

TAB H

Air Jireh services SnE, MBE; HUB Certjfiedt 8 (a)

The Airconditioning I Plumbing Specialist 5122 Leonhardt, San Antonio, TX 78233 Phone: (210) 59()..OH9 Fax: (210) 590~778~ MECHANICAL-PLUMBING~ITE UTILITIES

Name: WI:lIVCl' &; Jacobs Constrllletors.llle. Date: JUlie 26, ZOl3 Addres.~; 301 Coo{k!lratlvt Way Phone: (Ul) 277·9300 City. State &. Zlp:Cuero, TX 77954 (361) 277·9174 ß-Mail: BrantJlllJilbs Job Name: TAFT ISO FroIlt Paëkage C Scope of Work: We lite blddillg on tile HVAC all per plaftS

HVAC 1. Provide and InstillU (3) rooftop ullits. 2. Provide Ind Innal! (3) ulu!ust rans. 3. Provide Imd InstIll (3) smoke detetltors. 4. Provide and Instal1lbtei' plelll'nl', S. Pl'ovidelind instaD 1" wrappttl sbeeCmetal thu:tw&rk,. Ii. Prov_de IIJ11t Illst •• l PVC i'!Ondemalil. 7. Provide.nd IllstalllllllrllJe# lind dlrta"l'S. 8. Provide prognl!mmable (-staU. 9. Provide all1l1l1Aneé t.".t. 11). Provide permit. eUle. Ind nø tøxon MIlterlat roTAL Q ~ .. .sU5"'71••0

Elecll'icill :;witches, disconnects. molar starters for exhaust lims Ot HV AC equipment. conduit pipe and [lIt1n'1oek conMCtiQnQ between fans Îs not part o'fuis bid.

2 Roof lind wall ptJIletrations, roof ourb leveling, moping, flashing and sealing is not part of this bid. To be provided by roofer or genoral cootr¡¡çtor.

) Concrek: sJab, or hQu:;ekeeplng pad for coßàen~er, ail' handlas or IIny equipment. is not plirt of this bid. ( General Conlmclor)

4 Welded angle Iron under roof curb for al.ructul'1dsupport Is not par Qfthls bid. (by OC) 5 Any platfol'm, COllerete slab, for waler heaters, or My equipment is not pørt of this bid. (by OC) 6 DDC Controls $re not a port afthis bid.

Payment Temtl.I:

Tfle .b!We præf:S,lpedlicl'Iün.s aud wndltiom .n l.tØr.ctofYllUd .re bel'llby .œeptl:d.

1'.,111" authorbl4!d tø do tbe work n specified. PaymenC wU, be imide M outbed llbove.

Au!lwri:œd Acceptance Date

Company Representstlve _()_s_k;;..IIr_Se.;..;.::p;;..W,;_v,;_cd:....II ~_____ Daté ~!.-~!~~_ .. _

W&J 000003(1

TAB I

WEAVER & JACOBS Contract j:¡ INN1'¡IP¡;1"I)!l)i, INC.

Se...i309-QOOiS \/Ilsaver 8. Jaeobs COllalruclors, loe. Prol..:t; 13ll9. TaUfigl1 School Froot afflte 8. Z013lmøro'ltmeliti :101 CO()!lllf$11veWay 400 Colí!glJ Slfeet CUMO, TexlIs 17954 Tafl, Texas 78390 Phona: 361·271.9300 F&~: 36HZ71·!I2'f4

HVAC Systems OATIë CREATEO: 01/23/2013

CONTRACT COMPANY: Air Jlrelt SeIViclIa Chri& Br,¡;oJ:'ow&ki fWtiIVtr & S12Z leonhardl JacobsC_\tu!llo,a. mil.) Søn AnIQmO', 't8Xl1$ 78233 3€J1 COOjli!f91lvt Way Phon&; (210) 590.0119 CUero, Tex» 77954 Fax! (21G)S9f}.7189 • ~"",~,,,,,....,4_~ .. _.,. '.~" ~"", __ ....__ ,.._...

.. ~_. _.. _"_.ü."_~',,, .. ""_,, . _. " .• _.. ~ ~ COH'l'AA!::T 5TATlJ$: ApprllWd EXECUTED: .~-~.~." ... ,_..,. ....... _' .... " ...... -y. ~, .. ~_..... .. .... ~ ...... .....,. ,.~' ....... ".. ,..---- ...... " ......... -_ ....

STAAT DATE: ...... ~ '" o. _u",''''''' ...... J~_""",_""~,,,,,__ ,__ ,,,,,,,,,~,,,,,",,,,_,,_, ....._~ ~ .~__.~,.

SIaHen COtolTRACTRSCElVED DAre: DEFAULT RerAIHAtn¡: oEseru1>T1fltf: GeNeAAI.. CONTRACT DATe: June 25, 2013 OWflErt: TlIftLS.O.

400 COUIIg9 gime! Tall, rx 711390 Talt HIUh Sefiool front Ofl'ICllOlind (lUMr Imp_11Mfft3 2013 liI:l:i!Rincon • Tall, TX 1lJ39{l

f'e«~n&~1),Ût$ Cllrpll$ CMSII, TeJ<IIâ MODlFlCA'l1Orœ OR AOI',lEl'iDA: Nonø CONMeHC£MtWr DATii': Jurtll25, 2D13 SUBSTANTIAl.. COMPLETION DA're: III geccf\'llu1C1! WIll!Col'l!rtlçt Oocull1!lnlll SAI.E$TAX: TNt projeçt I$lllx exempt. ~eøtt 1$lllldDáød. PROGRSSS!>ÁYMENTS: SVBOONiRACiOR PROGRESS PAYMEIIITS WU ae MACE NO LATJ';¡RTHAN 5 WORKlNG DAYS AFTER GENERAL CONTRACTOR ru:œves PAYMeNT.Colltraçtor ¡hall píly SubClllllroctor IllQnll1!yprog_ paymentI. SUbClllllraetor.1ulI prll\llde C«\!IlIetor will! mø_ estImal!!ll bylite ZQIb or eallll monI1111lId .J!íL..... petœf11JIlIY!11l!1lt of 8jlfltIIved eSlimill8l¡. $hd be paid.Tile IIl1'lOO1ltOf ear.h llrour- paymmllfo !he SjJb*~sIIaII bø equllllO lIta!lll~ of f:llmpledon øliowed to !he col'llra~orfortl1e WOlle(jf!hlll Stlbcoo!nlctor ap¡Xled IO ll1it COllIrilct &um ofINa IlObOOfltract flIUIIll'!e amounl álowed 10r ma!l!nall! lUId equlp¡nelll IIt.lÍU!l:lIy SlOOld by tile Sl.Ibèølltrllclor IMs Itle I19gregate 0I1lf411lcm pøymen\lllO lite Slilcoi'lltactor lef;aJlL......... p!If(:>;!n!mlama¡¡é. 11"- 1II11!Q11!:.of II pragl"" plYll'lIlnt, lit. ,ubc~or.ll.lI.\lbmlt tvlftel'lc •• MllfllltOIY tø the C~ thllt dlllU. lOr maUllÍlllllnd .qulprtl4lllt, and III known mdebtedlt ... 1l000llllC1ilQwill! ttt. SUbcontractor's work havll bflln nttatled Md dlaclliU¡Jtd fot ttt. 1'l'1l'i1<1118 ¡lllrlodil for whll:ll PlIyl'lHlnt ha. ~ mad.. A cllfnpf4tllllllt øf Yflur f¡1l1l-subllnwllCton¡ and mølor 11U111Ifta1.~ mUll be lIIladl.d bl UtI. ilUbeOfttnll:t on Illfl fonn prílllldØ'd.

f'rtlVllIed It*'I'l h,$ bfll!!100 m.adt GrdefIllIt uflll!!r this Mmet SWconlracl ÀIlfllllfllllnf, ~IGr $haßmilk. paymenton !he lattor ofthe fQIIoWing datll$: 1. On or I!eI'Gre lha201ll !lay of lh!l toIIGw(ng month: 2. IMIhIllllve days of IlICi1Jj)t of Ukli payment from 0Wn1llf': 3. 'Mlhln five clay/¡ at S!IbconIracw Ctlrlng any bteiIdI ol OOIIIrllcl,lnclldlng, lM nolImIted lo. hllllfn¡¡ boen nDlifled of faqum lo pedOfIlI pmu.1lI III MIde 17. MIlll(.llllon of In!e>1tIO Ih._ ef Ølhlll' efalm& and or lfIe Iling ol'l.lcl1liefl! Of'olller d.mt¡ bylIub-.ubCllntractons .nd lWptlJtlrs of Sllb~r. fllllure lo prolll<!e required ImtJt1II1CII .nd bonda, lII1d_!!IlO invoice lo IJCCIl(Q,nce willi thfllertn$llf IIII&'AiI'"""lIIl!. P1Il1lalWen \l\l¡¡hlillll i'róm l,I!IIlh SUbeontractor'.lIUbcøntractOt1l Md IWjlplltr& ¡hal cønaUluta aal!JfaelOl}' fI\IIdøl1te 1het allaceounl$ havo boon pak! In (lill. NotwlthaflHldlnlJth. foreøotng.$ulaollttlllltflf .",.., that Contflctlll' ôa. n'VM bli olIJIlIlItlldlo plly III1lH:ontl1lclorIIl1d.,.oy l;!r;:lIl1Utbl.nCllOII,\l1\18II$.nd l1l\1I1fund'" lire fIIcelvtd ~ Contflllltor In full, le$. lIny lIppllll.1l1e tøtamat-, cOVfling IM WOI'II and material!! fOf wblGtI $ubotmltRlof hu .ubmltWd li payI'nOIIt lllquest. 0WII'IIr'. pa:ym.nt fo Contr1Ictor 1IfI11l .,. a ¡;gndlíloll P~"t bl Conll'lldor'lII obflglllon lo PØ)' lile Sl.!bdol$actør and $1Ib!;Qnlrllc:tor'lIl'!gbl iø ..o.lv. pllyment. Tliit P"lIglllpb .hlllrt Ml b. eønltMd II' IIIUme of pa:ynwm clllu", !lub(:oll~r h_by IIcknowtltdll" lfIlIf it ill ... umml! the rI"k ol nOIl~ by th. Owt>•• ihl. llolldltill!1 pntCCd"nt al.o IIpplits tø Contractor'" obIlglItlon lo PlIY chang. OMn. tiltal" 119'* Qf flnlIr flIiIl'mlInt, If any. lind Cont~r'lJ eurcÑíe of li rlllbt o, offaet Ilhall !HIt be Il bIllIIch of .ny l*Yment prøvlelofl hartot, lind "'afl not 11111 (:.onlllll'W!d .. being a vl9r.llonof tM-T8Ka11-Trual-FundStll!ulls. -

W&JOOGOO8

• Conlrllctor paraorIIPIt I:I6rewllh,

CeRTIFl1W Wl::"A VER

PAYROLL:

& JACOnS CO/\'STflU, :rORS. IJl;C,

ahan never be obligatttd to pay !'IltJ;lnag" to SubcontrllCtof

NOI1!!

UIIH! Contractor b.IJrøçelved all of Contractor'.

Contract SC ..1309-00015 101,llIilS811l fulL Thiel aupel10tdu III other provl!lionlJi of lill, Agf'llllmenl, and IIny c:onftldlng laRqualle ,hllil b. modlll.d 1M' deJlrled lo bo con.I.~nt

ACCEPTEe ALTERNATes: None

UNIT PRICES: IlIlICCQnlance with q~öle

SUBMITTALS: SUBMIT ALL SUBMITTALS/SHO? ORAIMNGS ELECTRONICALLY; PLEASE CONTACT PROJECT MANAGER TO COORDrN ....TE

mSURAtfc£ fU!QUJRI',MEN'I'$ A) Commuelal 0<I118rai Liability 1. Commercløl GlInemi Llllbißty with Mmils of insurance of not reIß than $1.000,000 Each OCCllrranea, $2.000,000 ProduGls/ComplelQd OperailQn$ AggregatII, ~1.1100,OOOPersonal 8< Adl/Sr1Isinglnjuly, $100,000 Fr" Oamøge Limit (ally ooe fifa). $1l,OOCModi¡;¡¡l Expenot! (allY OI1It pl!raon)lllId S2.00a,OOo General Annual AlIg(~gatø. 111118COmmercial General LiøbllllY CDversO'" contafmil Il General Aggrøllale Limfl, luch Gen~r~1 Aggregate $haP apply aeparet.ely lo each proj"et.

2. Commerèlttl General liability eOl/Srage shall be wIllIen on ISO Occurrence form CG 00 0112 01 or II substitute form providing equivalent covsmge and ahall cover HabilIly arlalog tom premises, operelions, independent conbaclln, prllducLe-complcled oparaUons, and perllOnal Ind adWrll~ing Injury. 3. GommIl COlllttUtar. Owner and 1111otherpartiell r'ilqWred (Jf Ihe Gfft'lsral Cantl13cror, $118"00 Inclt«l'<sd88 InsW!lds on (lie COrnmllrcfel Generæl Uability using ISO MdHlonullnllllred EndorSliment CG 20 10 11 85 or CO 20 10 10 01 end CG 20 37 10 o. or CG 20 $:l 10 01 or an 1lM000ement provIding equivalent (lollomIle lo Ihe additionel iI1lureda. Thl3lnsufsJ\Ce Ibr Ihe addlUonlÛ Insuradllshøll be 118 broød al! Ille eovamge pfo~ldIld for the !lIlmeQ Insured SUbCQI1YBclot. II shad apply II!prlmal'¡l and non-cønlrtbUtOI'¡lIwlUl'lIIIœ befare any othar Insumnœ or

<t.

aølf.!nsumoce.lnciudlll!lllny d~ductible. malnllllned by, cr )llUVlded to.lhe IIddít1GnsllllllllM1t.

a.

Subconll'actor &hall mamle!n CGmmercIa.1 GOlleral I..iabIlily cøvaragll for 11110111.111<1addiUon al Insureds ror lho åuralion of Iho project and maintain CompitHIld OperaUona coverage Cor lIaIlIf and Ilach additional murad for nt taaal II1rllil (3) yeam aliar comp!alion urIbIl work.

I) AUlomøblhtl.lablll1y

1. SuMen Auto Llab¡~ty with limiIi! af at leasl $1 ,00!l ,QOOfor Ilaell accident, 2, 6U$1neas Aula Cowragß musllncludl! coverage Cor llabiAty arlslnl} oui or all oWOOd,lell5f1d, hitlld, and nllftoOWl1<ld aulomllbíles. 3. Gllnertl1 Con!mc;lor, Owner lind all other partles requlred of !he Genarai Contrllctor, am.l be ineludtd BS fnsu!edS 00 !he outo polley.

CI CommerallilUmbrtlla i. Umbmlla tlmlls mwi bil nollo$$lhøn $2.000,OOll Saell OCCU/lel1ea pnd $2,000,000 GomlIraI Annual Ägtlregaœ 2. Umbn!lla coverage must Ine/ude as IMurad~ all enOlIes lIllIt sre additianollrn¡oÆd!i an tI1!i Cllmmardlll Gefleralliabillly. 3. Umbrella covero(lo ro, euellllddltkltlll'lnaureds shal! apply as primary and non.oontrIllU!ilry Inllllnlnea befora any llIh~r 'nslll1lnce or &eir· InlllJranca,lncludrng any deductible. maintained by,lIrllfovlded lo, lhe add/~ooaIln$ured Qll1erlllall the Commercial Genaral L1ablUIy, Aulo Liability. and EmpI~YOf$ Li¡¡bllliy Cû\liimgeil m!llrtlaineti by 100 ~bconh·l.ietor.

til Wmbl'll Complln ... tron and Employers LiabIlity 1. Employers UabHlly /llaUr8nce lmits at a! IlIa~1 $1 ,OOO,OOó ",aeh .u:c:ltfent ror bOOlty Injury by acddent and $1.000,000 ø_ø employee fot jl~ury by d¡~.$u.

Z. Whefllapplfcablfl, U.S. Longshoffl and HerblllWarkllrs COO1jlens~I¡O" Act EndarHmanl ~hall be Itlache<.llo!he policy. 3, Where applicable, the MerlU,,", ClIverage Endofliflment IIhJ~ bll4tlllweä to the pelcy.

E) Walvál' e1 $ubrllll.llon

f. Subconlrøctarwalvo8 a. rIgItIll agalnal Conlroclar, Owner, lind AroIlltøm lind thalr Qgoots, officers, dlmctOr3. and employool for rocoVQfy of damages to lhe axlJ¡nt Ihose damages 8f1l covered by comnltlrtlal geooml DatI.lty, commercial umbrella lIebiity, buslness!!ulo UsuAlly Ilt worl<ers oompansaUon Gild emp!oyer8 Uøblllly lnsumneø mlllnlall100 PIll'requlrement SUIlad abova.

FI Hot/ftcatlon ot Oancella.tlon, Non.Ranewal or Uate.',1 Ob.nge In Coverlp 1. Subcoolmctllm General Llabfllly. Auloll1oblk: UllblIIty, lJrnbreilo LIllbilly and Workers' CompensaKon po4leles shal be nmlorsod lo stete Ihøl Contractor will be notIlkld ¡¡I!eas! 30 d~Yllln advl.ll1œ In It1e evonlo! canea.oUon. non.,enowal, 01 material cI1l.111geIn cøV{1l'llgl) of sold pa.eles and Ihll subçonttllctor will repløœ ''wßJ endellvQI" willi 'must noHfY' /n thek' CertIficaIe of Insurance.

O) Certlfle.te. oflnsuflIllc.

W&J 000009 Page2 ofG Printed On: 08/201201301:48 PM

304

• _

1..t.

WEA '-

ve« '-~ JACUBS CONX'l'CI(!C·''ORS.

Subcon!l'llclor reqwrIlmentsllave INC',

shan jlI'olllde Cont/llctor with Vllild eMmeaIes. of in,ul'1lrlCé prior to commencement Contract SC-1309 ..00015 of work verifying sard insurance been met. AUøcb!!d to oath CértiffCll!1I of l'lourant\! shal bil a copy ol the Additional fnsul'fd Endnr$omentthat SUbcontractors Commercia I GeneralllablRly Polley.

Is part ~tthe

In .. ur~IlC.

C8rilßcatolS .ro roqllirad to bo submitted on the Aoeord form. Your In!\¡r.n~ .Olll1t ahøuld bo contaclød lmmedilitaly and notilled bo al1Dwed ol'llho 10001I1tountil a ,apl' '''' on file In our CUllre effi<l., PIeMI! MIli! fult yOllr tf. 'o!Ward tl1l1 cflrtl1h:lIto to 0111'Ilfflco. YOII wlllMt conCføct IIrld anli paymanw due wm II" held until tills It.s bun rlo.lved. It III your re8ponslbillty tB fumliII new e.rtillcitell WMA CUIYllnt cove rag. explr ••• Subc!!nbllctl could be null and void If yo II ant unBllI1I to oblaln Wcfllelll Compan.atløn covorallo, you ehçul<lllotiry Ul Imm8dl*lfy It there le. problem, SUQ~\l!ltll!ç!9tJ w!!fll!nll tI![ YRU»'lUlilO liv gall'red to submit çertlflCIl!!la pt IO'\leana. Ng liGtil!1I0ll,

BONO REQUIREMENTS: N/A CLIMNUP: Elich ~ullcol1trac!or il; relIp~nslble for crØanup and haul off of hI. own !rash~. The lQ~itll sllllerfntendent will determino the degIlIe of cl511nup required. YQ\JwHI get one \II!lrbalwarning bv OUf sopcrlnlllndent. If your WQrld' notekIlIned lip. we will do illoryou and back ellargø your ~Il'aef 3CC<lrdin91y.

BÂCKCHARGeS: Back charges gefIßl'IltlY'llm nol be ellowed without willian aulharizallon from tile W6aver 8, Jacoba COllsltuclo,a' Prolee! Ma~IlQer. You will bo baCk charged by weaVllf & Jacobs ConslnJctol1l for.

t, Cleill1llp a project sile If yøu (all to pClrform ,11er a vIllbat w8111111g 2. Work that Weaver to Jacob$ COO$lI'uctO¡S la rarCQd to complete for ltema Included under your ¡cope QfwOli! that yeur Hrm ralls lo CQmplela III a Hmely mønner. 3. Long Dililance phone chergn 1'Ila&l by yllUf illild p&~ol\nal to your olllce I)' lIuppkl$, and all perwnal cans P!\I~1111adrnlnlslralil/Et çnllflJ'" 4. Use of Weaver & Jacob. CøllllruClow JobsKa equipment and opørlllor In parfomllllll allV of }'Our acope of work on !hIG ¡¡rollIt!,

Sad< Chargea bellVGOOMcontractofB 3I1ou1d bii s\lbmlUOO ¡fl a tinely mllnner (aD day.) 10 !he Projecl SUperlnlendent. Thoso wln only bo slowed by written au!h<llluUon betwaen both flottlea and wIIIt ~nalllPPfIlval of Ille Proj~c;t Manager.

REQUESTS FOR EXTRAS OR CHANGE ORDERS: AU ..CHANGE OMERS MUSTOE IN WRmNG. CHAHOE ORDERS MAY NOT BE DONIi AT THE JOasm: LEVEL ALL ASQUESra FOR EXTRAS OR CHANGE ORDERS MUST COME THROUGH TIfE PROJECT MANAGER IN THE HOME OFFICE, lliE oNLY WAY 1'0 CHAUGI! YOUR CONtAACT AfoIOUNr IS THROLIGH A INRiTTEN CfIANOE ORDER FROM OIJR Of Ace.

PAYMENTS TO lluacoNTRAcrOftS/SUPpUl!!I'l$l Cootmdl)f lind SubcoouaClGf lilll'lle lhallt Cnl\lratiOt at allY llI'Ile bclie'l/ea,In Ila .ole jlJØgmtnt,'I'I&I SubCllllInJ.¡;\or's 3\11l1ltier~and/lif lubcolltmclanl may not be paid by Subcontractor, Cooolletor maYeltld to pay eny Mlth subconllador. or suppliers dlreclf)' by joint cheek and ~h8nIle enillfed to d~uo;.t any aueh ,urna pald from wml dull' lo Subc.onlraetor. Cootl'8c:1or'a !ted:!lo" to pay SIIbcorllramor'$ suppllerIl or subcol1lmelOOil dímctly or by Jolnt!ôheck lillan nøt bø c.on$ldIll'Qd II broach Dt 1I11nSubconlrad.

FINAt. PAYM ENr: FInal paymool llhail bii dUll whan the WOrk desGlll!ed In Ihre aUbCØ!1lr1lcÍt Is fullY completed àIld p$JOImed In aœatdanoo With the contract documonis, apprø\llld by thé Archl!e cl, ¡¡coopted blithe OWner, and rolalnllQ!! tor Itlet portlort of the werk has bee'n received ffom Ú1e owner, a,JOflt I$SURIlC&of lin IIIpavmønl, Ille Subconltlt~or $/IsU sllbmU f\IIdertca ~llsføt!OI)' to 'M Contractor that al pF.l)TQlll, ¡¡iU", før mlltet'l91 and equipment, lind all known IlIlløbtMnel& connllo:led Wilh lha SWCQnttaçlor'a work have buen saUafted and disdlarged.

SUBCONTRACTOR'S RESPONSlalLltIES:

1. The SIlbC<!nlruclor $hall bli bOUM to Ilia Conll'1lGlor by the talmit of!hls lIfIreemenl and elllle CIlnlta.:t Oot;umllllls ootween 1M Owner and Contractor, snd shell assume toward Contcaclor IiH !h!I obllgaUons 8fld f1tspoIl1llbIKUe$ which the ContraelQf. by Ihuse óocuments, assume!! koward tile OWner.

2. SWtotdractor shølllllKII aU neeaS:IaIY pre<:aldklns ta pfoløct Ihe work of other tladc~ from dal111lge CilVsød b)r hl$ oparlJlh:on~ ~ $hall be fO$panslble, ther.,(ore, ¡f lat~ W«~ "dam.ged <Ul II !œul! of SIIIlGonlrll¢!or'$ ñØlllig«IUIl or ifill flOlglillenœ of hl$ em(lCoY1lcII or ~ar3Ol1s under CIlflttaet to him.

3.. The Subcantractar shalllakfl aU 1II1I.8onable saraty precautlons with respaCllo his Worlè, $IlaN comply with ai' safely measuros Initialed by Iho Canteado! _nå wUh 1111 epp6cable lawa. ordlnlIDCl.!', rules, f81l01aØQ1'I1I1II1d ordørs of any p<bllc authority l'or Ine safety of perS(31!$ or llrope!ly in accordance With Ihe mqulrtlmsnl3 of the CIln!l'lld O!lçUmllnt$. Th!! SUIlconlr.ldor sMU ropt'>lt wllhln Ihmlt days lo 1M Contractor any fnJul)' lo eny of II1e Subcanlnlc\or', employeas al IIu! sita. It 1"\lrttulr agrecd by and b!llWoen 1M partie$ hlll1rtt:lIMt SUbeonlroclor hemin :¡hallIOld harmleilll and Indemnll'y Contrlldtlr ror IIny and 1111 pefIßlllea ø""ased agaInst Contractor al! ji ,asurl of lIioløUon ol Ule OCCUpatlona, Heil1th and Sar~fy Act and all'llqUlrol'lllln1$ relelad Ihøreto If such penally aT ~llf1alllllS am 8llSI!S$lId gl !evled as II fe$U~ d. any "lIllation of said Oceupplfol1al Heal1h lind Safely Act by SubCQlltr!lc;lor or an~ of uld Subcanlractor'a employees, IIQ&rltli or Independent conlractors wortdng undet Ine dhclloo ol IIald SUbeontraetor. Paliure to telmlluflll Conllaelar ,høll rnlW lite elfeCl ot _!loWIng COnl1ae!Ot IQ WIthhold fot "s own betUli! 111ftamount af $uch penall't out af ""V paymMhl due under lIIeloilrm$ øf lilis conll'llcl.

4. Subcontraetor shall not usíll" aU ur any part of thIs sijbconlrael nOf any amountß due or lo become due underthl& wbconlrBct wllÎ10ut writtan consent of ConlraClor.

&. Sul¡l)OI1lrllclof warrant& that BlI matlulall; and IIqul¡!menl f\lmlshød and !ncorporaltd by kim Inthe Pr~w. ahal he new unless öthorwlsa i!;le(;ified. ind Ihal al/ W()rk under liliS Subconlrad shif be good quaily. fnm tram (aulla dnd defllclS and in confurmance wllh Ø11lContrael 0cx:IJ ment~.

6, SIlbconlrao:tor 8!jceaSlhalll he should neglect to proseCIlIe lile work <lIlIgenlly and properly or fall to pedOllll any prolll$!ons ofll1ls Subc.onlraet, thll Contrador, øfter three Workinl1 day,' wlll!øn notice to !he SYbcontratlar. may. without prejudlee to any oIh« ",lOO'dy hil møy Ilaw. møkQ

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305

• _ WEAVER & JACOBS CO¡"'STllI.'C,!"()JI;;' 'NC Contract SC..1309 ..00015 good such deßclern:l&s and may deduct the cos! thoreoff'om thll poymentll tnen or h~reQfte( due subcontractor. Amounls owed IO 5ubcuntracto( on altta, prolacta with Weavllr '- Jacobs Constructors. Inc, may be Withhetd IO sall$ly ønylndøblVdooS5 on IhlG prolec1. 7. Subcontractor lermJi, <lgroo.that Contraotor's Qqul¡llTlont will be avtllabla to Sub~ontractor onlv at Cootrat:tws

8, Any ¡;hangv in Work frofIl Drawings and Specil1çaUon.

d!.aølkm and on muwely setlsfactory

ot thll Contract Do;;~m9nl$ oroured In Writlllg by Contracto! shall bø adherelllo bV Subconlracl(l( lIIld shan nDllnvatidale this &ubcvnlract and !ha msu" In addlllOflIlll cost or alldn &hall be rad uced to wrlllng and slgroQ by Conlractor and Sutlllootractor.

S, Subcuntraclor shaA cooporato and coordinate with other suboontrllctors and ConltacCGr whero woll< Inlatt'erllnce might l1ij~ult, ami $hall ooQperata wilh Ccnlraetor fr¡ ,chedu~ng and partQrmlng Ill. work IQ allO[d conßlct (l( Inl~rlølence willi tha Walk of 011181'$.

1 (). Tile &Ul;¡conlrscloT $hall promply aubmIt shGp drawIngs and s~mpIßS as reqUIred [n Ofiler lo perform hi, woJ!< afllclllllUy, IIxpedlliollllly and In 11 manner Ittal ""Ul nol Cluse tkI1ay In the progress of the Work of the Contractor or OII1or SubconlractQrs.

11. Subcontractor shall glvlI al noûees and IUlIllplywllh allaws. ordinaneIlS, ruiOlI, rogulaDons and oldlirs of any ~ubJc .uthorlly bsarinll an tha performam:e ol th!! Woi1l under illiG aubrontraeL TM Sullconlraetor shan secura and pay fOI all palll1US, fees and IIcen66l1 necllllUlry for the ftl(ecuHoo of the WMc dl!lIcrl~d In the Contracl Ooeumen!s IS pllplc.ble to Ihi. Subeonlract.

12. SUbcontractor maN oomply wllh Feckral, Slale and tocal lu laws, BOdal securky IIctS, unemployment compe!'lSaiton acls and walkman', compen$atlon selS Il1aofar all appftcable lo Ille perform,nee of !hili JlWCOI'Itral:i.

13. Subcontractor agr!leslhat øll WIllk shell be llano subject lo ßnQlltflProval of Ihe Archilecl. and the Archllocfs dod8ron Ifl matlel1l rlI!ated lo anlsUc ellOc! shall bø final.

14. 1... INDIôMNIFrCATION: TO THe ftUUI!STexrEHT PERMITTED BY LAW; SUBCONTRACTOR AGReeS TO INOIôMNlFY,DEF"NO, ANO HOLD HARMLESS THE OWNER, CONTRACTOR AND CORPORATIONS WllICH DIReCTLY OR lNDrRGefLY THROUGH ONE OR MORE INTEMlEOIARIIS CONtROL. OR ARE C()NTROI.I.£O SY, OR AAlUNDER COMMON CONTROL WllK COKfRAC'I'OR. AND THE DIRECTORS, OP¡rICERS, AGI!NTS. AND EMPLOYEES Ol' OWNER, CONTRACTOR AND OF SUCH CORPORATION ALONG WIlli ANY OTHER ENTITY I'Oft WHOM INDEMNIFICATION BY CON'TFIAC1'OftIS "EQUI~I!D UNDUR 'IHE PRIM! eOH'I'RAct AGAINa¡ AlL LIABILITY AND ClAIMs fOR:

1. 1. nEAtH OF OR INJURY TO ANY AND ALL SUI>LOVEES OF SlJBCONTRACTOR, AND EMPLOYEES Ol' Am OF sua-

CONTRACTORS' 8UaCONTRAcroRS ANnlOR SUPPLIERS; AND 2, 2. PROP~1'Y DAllAGE TO PROPERTY OF sua- CONTRACTOR ANOlaR sueCONTRACTORS' sUB. CONTRACTORS AN0101t SUPPLIERS ,INCLUDING THE LOSS OF USE OF PROPERTY.

Tua INOEMHrtY CONTAINED HERI!IM INCLUOE!SINOEMNlflCATION FOR ANY AMD AU. EXPENSES AND ATTORNeYS FUS Jl.I!LATaO TO Tftl! CLAIMS OellCftIBED ARISING OR AlU!GED lO ARIlI! OUT OF OR 1MAtri WAY TO SUBCONTRACTOR'S BRflACH OF THil AGREIWENT. eVEN IF SUCH CLAlM OR UAalU'tY IS CAUS!:O IN WHOU, OR IN PARl' 8'1 'fHe NI!GLIGEH.CE OF IJff INDlliMNfI'EE, Ir BeINIl THE EXPRESS INTIlNT OF THE PARTI£S THAT Tfo!E3UBCONTRACTOR INOEMNIPY THE COH1'RAcTOR EVEN FRaU lHE Q'MfM'!I AND CONTRACTOR'S OWN NEGUOENC&. SUBCONTRACTOR AlSO AORUS 1'0INoeMNIFYiHE OWNER AND CONTRACTOR AND IfOLD rr HAIIMLGSlI FR.OU ALlIi!XPENlIES. INCUIDING ATJORNlY'S FEES CAUSED ay OA RELATSD TO ANY BREACH BYIIUIICONmACTOR OF THIS AOREeMENT. SUBCONTRACTOR SHALL Bli RESPONSISLE FOR OAMAGe 10 OR LOSS OF THE SUBLET WORK, WHetHER CPWLETED OR UNDER cormmUCT10N, umlL RESPONSIBlWTY FOR lHE WORf( HAS ElEENAcceMro BY THE OWN:eA,AND sua<fONTRACTOR AGI'WilS TO INDEMNlFY OWNER AND CotrrRACTOR AGAINST "I.l. EXPENSES AND COSTS CAUSED BY AMY SUCH DAMAGE OR LOSS l'RaNi ANV CAUIIE. EVEN IF SUOH DAMAGE OR LOSS IS CAUSEO IN WHOLE OR IN PARr BY THE NEQUSENeS OF AHY IHIlEMNInE. SUBCONTRA010R WILL AlSO TAl<! PRECAUTIONS TO PROTECT alKER PORTlOHS OF THE WORK. IT IS AGREED WITH RESPECT TO ANY LEGAL UMITATIONS NOW OR HEREAFTER IN EFFECT AND AFFECTING mE VALIDITY OR EN.FORCEABILITYOF THe INOEMNIFtCATIOH OBLIGATION UNDeR THE ABOVE PARAGRAPH, SUCH LEGAL UMl:TA'l'IOHS ARE MAnE A PART OF THE lNDI!MHIf'ICATION OBUGATION ANO SHALL OPERATE TO AMEND THE INDI'lMNIFICATlON 08L1GAt1ON TO THfUINlMlJM EXTEH1' NECES!lAf« ro BRING me PROVISION INTO CONFORMITY WITH THE REQUIREMENTS OF SUCH LIMItATIONS, AND AS 80 MOOIFU!o' THE IHDEMNIFIc:AT10tf OIilUQATION SHAlL CONTINUS IN FUI.L FORCE AND EFFECT. The Îf!demníficallon obllg.Uons undor thi!¡ Subéonnd $høll rol blillimUed In lilly we,! by any 11mlIation on !he ilmoUllI or type DI dllm&ges, çllll1POOllatlon. or bEnefit. pIlYlIbIa by (l( ror tite Sulmmlrudor unl!6f WOfk6r'1I c:om110l18aUon açls. dlaabí1l1y banefit ada or other elllJllQylle bIlnll«1$ acta, and maD ~xlen¡j la ItIclOOIl any açllons brou"hl by or tll tha name of any emplol/Oil of lho Subcontradof(l( III any third Illrly la moll'! Subconlrllctor may sulllel ft palt of tite wont The oblgllt!ont¡ o11ht1 SulleonlradOr under Ihlsc paragraph ahell nøt extend IO thll liability of Ifla Ardll!8cl. thil Architect's CIlnauKanl&. lind lIgenIlI end employees of any of them allslng out of !he JlfllparaUon or approval of maps, drawings, ophllonB, ropnrtø. IlUl\I!!f$, Chang!) Orders, dC~lln5 or spedßcøUOO$. or !he glYlng of or faUuro lo øi\le direllllOflS QI' In$trucll_ by !he N~h~ect,th8 ArcWleefs rotle.ultftl'll&, and 1I11"n!~ 8nd err.,/Dyell! III any ot Ihllm provided luch g1vif1g Of failUre lo give Is tIlO primsry cau~ of!ha InjYry Of dtlmlljJiI.

ÇgrtTAACTOR'S m¡SPON§Ia!!,meSi

1. Contract<:>f shall be bGllnd IQ Subconlrøåor b'l \h\lll!lll1l1 oJ this IIg«1cmenl and of lllø Conirae! Oocumoob beIWe<ln IIl<l OWnGf and CQntracl<lf lind sllaO assume towartl SubcQl1tractor althe obllgøHoM and reSjlonslbllItles thaiihe Owner, by lhoSl! Documents. ¡¡stumes Itlward Comrac;iof, and lIhaH haveltIe beneflt or aU rlght$. remedie. and redru", agalnst!hl!' SubcOfltractor whleb \he OWner, by \hose Documents, has agalnsl COl1tradOf, Insofar as al'pQcable lo this subcontract, provtded that wlwrt any provl$lon of the Contract OQeumenl$ betw1!el1 Owner and Conlractllf la InconsisMnl wl\h il.ny proviGiOll '" !hiG&groMmeIll. t~l, sgfflemlnt sill. gqwrn. 2. Contrador IhIIH PlQmptly l'lailly Subconlnl()Úlr of a~ modltlcaUon$ to the contract between !Ile Owner and Contractor. wllldl affect Itd8 subeonltøct and wh/ch were iUUGd or entered Into subsequent to the exeCIJllon o1lhis ,Wconlrael. 3. Contractor shaU mIIklI no demand for liqoldeled drundlJ"Ó for dótsy In anV s~m In ólo'cess or such amounl as may ba speCldcølly ·nsmed lo thiS aubeonlracl, and no liquidated damagøs shall be !I$S91j!i6Ø ageInst Ihla SlIbcon1mclor tor delays or ctllIstl4 aUrib<Jtl!d lo alllar subconlnlClofS or lIIiGlng Qulalde !he scop" of this subcanlrllcL 4. Conlr¡ctIIf shall nat give Ins\flltUQns or orders directly IO empl0YlllIs or workmen ot subcontractor except IO perS<:lnG doslgnntlld Ba ,\!IhOtized reprasantaUws of Subçontraclar. 5. Contractor sh@lIpermlt SubcPlIÙlIctar to bø pt1J5ent and lo $ubmll evidence In arly mediation proceeding JnVllMng hili righl8.

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WBAVER & jAGOßS Contract CO,\'X'I'I.:WhlllS./N!:, • SC-i309-000i5 G, Contrac!grshall permit tha Subcontractor lo e~erclsa whatever ñgh!$ Contractor mav have under lha Contra.::t Ooc::umønl!lln lhe ChOIceor media10m In nllY dispUllt, It Ihe soja cause or Ihe dispute flline Work, m.lilrJÑ$, equipment. rlghl~ or resPllt1lllb~lUu ol Int S\lbe~ntr.clor: or If the dispule Involves 11111SUbcontractor and any olhor subconlractor or 8ubconlractoNljolnUy, Cornraelor lIhaO pilrmll U'Hlmlo IIxatetall8ueh rIghIl! JOintly.

TeRMINATION: A. 'TERMINATION FOR DEFAULT Should Subean!N1c!or at any time faH to SI/l'Ply a suffi~ienlnlll1lher ol $kmed WOOOnIilIlor 3llufllden! quanlHy ollnawrlals of propel quality, or ra~ in 8I1y respect to pro$IlClJle Iht! Work coveled by this Agraemenl wittl ptOffiplnes6 and dYJllunœ, or fail to perlorm wOlk of 1he qualil)l requlrod by lila Prime Conlrac1, or laliin the perlormanea of Qny ot the agreemelTlsl1efeln conIalne", or should ~nl' workmen performing work COWflld by lh1sAgreemerit engage In a strfke or olherwalle stoppage. or ceuse lo work due lo pickelIng o, other sudl açtlvily, Conlraclilr may, In any of $UChell!!nts al il! optlcn, ølter ~\Illnty.two (72) hOUfSwritten noUce lo SUbconlraàor, prOlllde any such labor "nd materials, <Ulddoíl~çt the cost lliereof from .ny mon$y IMn due or there eClerto become dU<ilSubconlractor, or, In any of .udluWlnl$, Contraclar, may, at Its opllon, terminala 1M employmGnt of Subçontractor ror !he Sublet Work undIIrIhIs An~em.nl, and $hall have lho righl lo ef1!er upon Ihe-prsmllos and lu lake possumoo. fur thll putpost! of compl&tiog the SlIbkll Work hereunder, of alilha 11111191'181$, 1001$,alld equlpmentlhereoo, and lo filian Ihe Subl!)! Work lind provide tbe mate~als, thorofare, allhor willi II1lown ømployfll!Q or ilItlOr $ub1lOotraclOlIl; Alld In OMe of euch dlsean!lnuance Qf 1IIe employment by Contractor; Subcontre.CÙlrshall nal ba el1ll1l~dIO roœlva' any furiller plIymanls under this Agreement or otherwise, but sMil nevertl1eloe5sfllffialn Mable {or any damage$ WhIm Contractör inoJl'$. If!lle oxpenaes Incurred hy Contracter In eomplellog Ihe Sublet WoI1< shan exceed Ihe unpaid balance, Subeonlrllc!or shal pay 1M d!lI\!ranc910 CO!1traclor, Iiong with any Dth~r damages ¡ncurreil by Contraator as li result or SUbconlf'j¡çlor's default. Conllaclar ella' haw a Ikln upon all materials, luols and equlprllertt laken PQIIsøslllon of lo SilCUlVthe paymolllll1alli!of. Subœnlractor shad be liable to Cofllracror ror aß cœts and damaGe'SInourred hy Contractor dl/O to Ihll f~lIura of pI!If()fmal\œ by Sulleafllractor, Ille (¡¡ffura Qt Sunealllraclor lo keep lite progrese o( Itç work up lo thaI Il! COt'llmdQr or alhør lradll$, or the fallum to axeC\lte 11$work as directed by ConIreetur. Subea!1lraetor I!gre BS to &xecullt any eilalglVllel1111neceasary to milke ,veIlableI!) Conlmetor and the ÛlIIIler the ñghts of subcontractor undar purehllS0 otdel'$ and subcontract$, CoMclorwl~ a'Ildlt SubGonlrador's account wUh lM velue of the maletl.1lls alld suppUOI'$ so uSlld but ther!! will be 110ctedlilor renlon equlpntelll SUbconlraclCll' will reimburall Contractor In OeWltl Cou"IY, Texe$, lo the e~'i!nt Ihat Contractor', ":<pensEl. ¡»dud I!!!! al!Dfney~ lees, In completing Ihe Stilltet Walk ¡¡nd proœedin9 undElrIhl¡¡ Miele exteed$!he bal. nee whim would have bOCilIl1fl due IQ Sl.lbconlraçlor undet!hia Ag,.¡ell'Hlrll had Subounlraclor CIImpleted the Sublet 1Mltk.lf Contractor's l!Xpense 1&less tnlln &Uellllmouflt, !hen Subcontracll)f shall receive øs lill enllre and sole compensation lill aotual commo", neeeøt;ary aod ~4Il1'1alJl~ COIItsor perfolmillllhll Wlllk lo till!! date at lermlnaUOII,114determined byMt at subClll'inctor's rtcords, plus It rea,onallle m~rklIp for overhead lind proftt, but In nD evenl $hallweh amounts due hereunde r I!l(eeed the 101111 S~beOl'lltael PInOU"!. $ubamlraetot hereby waives all clafm;¡ 80ellllll Conlrector tor pfollS, "'rit 01'1equipment or ollw dam9lJOSrelated to any Jll'O~dlng wtIlm Co~lw:lor IntHtutMunder this ArtIcle, The Partlllll agrae Illat",!! lerm! DI this afllclllihall be binding If Comraclor In good (aHI1hM detwnlnlld lI1at $ubeatllradllr'a pI¡foTmllnœls 1n8de~ual& and thaI !he OWner or contractor Of GUIersubcontractor may be damaged, Of Conlrøctor may be unable lo perform Ila aonln.cluøl obligations, unlllss COrIlrnclllr JJfOCIIllda under lhIa MIde, TIlo Partltts agrae lila! sudl determinations aro dlftlcult to !!Iakt! and musl be mede und« pressing Clfllll!!lSIIII1i!8lI,and agree lö be .bQund In acooroanœ wllh Il'i>:I Miela In lI¡¡ht of the clrcumslance6 contonllng ConIraelor al U'l& time GlIdl rledlllon Is made. Should ConlraWlr's dacillan lo lemllIlle S\Jbeanlract for default be delermtled by a C4wt fo be li wrongfUl tMlllllladOll, Itlrlo ~ t"rmll\lIIkm fIlr dftlalM Shall automatically btl CDnVllrted to It terminalIon for flOnvenlftnGe of the Contractor, Il$ selout below, and SllboontraGtor's damages ilhaB be determinad u utllut in li tormlnatlon ror oonl/81\1enoo of Ihe ConlrllctDf'.

B. TE~MINATION FOR CONVEAlI!NCa Of CONTRACTOR OR OWNllR General Contractor møy, at i!JI option, tmmínallt for eal1VcniBIIÇII!:h1l Sublllt Wolle In Whole ar, from 111\1& to Ømé, In palt, RI øn~ time bV WI'kten "olice lo Subçontract<:lr, Such nollGO ahlll specify the axlènl Ie whlCfl Itle performaoœ olWOlk 1$termlIIalll<! and ¡he etrectNe date of ludl IllfIIlil1lll1«!. Upon receipt of suCh nooC(! Sllbconlrø llIor shall (a) Immedllliely dl~COI\Unu&th. Sublol WOt'i\ on Itw date Ind lo ~ ext.1lI ~ßed In Ille natfce and (lI.CCI no tulihsr Ordera Dr sub·SubcontNIÑ fl)l' lJta1e1hl15. !eMClI, or faç)JUu. olhér!t1M as may be requl/ed flir compleOon tJf tuch portion of Ille Suillet WOlle Ihat is noIterminsted; (b) promptly t)btain cancdlaUonl4lQn IIlrmllatis!aclorylo General Contractor on aH p¡¡rchsse ordel'$, sulr3ubeaflll'octs, rantal$, or IIny other sgfu!IIIlentll aldallll9 ror 11mperformance aflhll' lorml"~1ed worl! or _Ign lhosa I~~mllnt$ to Goneral OOl1lf'j¡ctvr as directed: (c) 811l1fat G_rQI ConllactorillllØ molnlenllfleß, prOleotlpn, alld dispos!!Ion of worlt In progras8, pklnl, tools. oqulpmoot,plOp~rty, Md mRtarlllla 6c:t¡\llrad by Sufx¡anlt¡¡oIor or IUfIlI5hed by Subeallll1lctor under 1I1IscontNIl:I: and (d) C()Ilj¡ll!lI& per1ófr1moo9 nt the Sublel Wolle WI1Id11snollcrmlnllled, \JporI IIny auch termll1llfloo. General Contraclor ahlI« h;¡VIl no fabllnl' for MY dØOlá~, IndUdlnq lOS!! of anUr;lpaltld protlb. Al! ills ada right end romtldy. Subconlraew MaN be ~9k1 the foRowlOO:(a) aU amaunta dUll and Ilct prevIously paid to Subeanlracl.or (0t"51JbletWork eampleted In aC(:llldllnco wlill !hG Subcontract prtor lo aueb oollœ lit termInation, and lorwDr~ lhereaftQf eomøleled 3J alleCHlQd III sudlllllllcø; tb) reuonsbl, IIdmlnhltratlve eoal$ of ¡eUling ønd paying r;lelma !lrisillll out ortho lurmlnllUon of Sublet IIVoIk undar sulHlubcon1rBllls or purchaSE!Groera; (c) reasonable costa Incurred In demoblll~HQIl and Ihe disposition 01Iln¡dual mIllerial, plant and llqulpment; and (d) II feaaooablll profit on ¡torm¡ (b) and (c) DOhis pemglaph. 111Ull1 evenl any lelmlnalloo of tha SUbclmtrllctor for default lJI1iCklf !ho defaultl_lnldlon af1lclo Is fater dallll'mlned to have belln Impropor, lhø tennlllaHón maJl automllllcail)l ba doamIld il lamdhattQn fur C'onvenlenee and tho Sullcon1Taclilr ,h&n be 11miludIn Its reoovery .Welty ro the Su!x:ontnll¡lor lIhall s\lbmil within 3U days .lter mcelpt (If rmtlce of tennlfllltlon, ¡fl propaGaI (or ill Idjusfmenl Ifl oompen.allon. InClUding aø rncurred eaGtII delctiblld herein. Gene~ Contractor $hllllll!lIIl!W, analvze, sild verify $um prOpo$al, and, If not latj)s~od, !HIgO•• !o an equltablo adjustment. and !hG SubOOl1ftaclal1al be 1Imlmded In wrlUng aeoCll'dlnglY. I>l!FI!CTM WORK AND CLAIMS: flQym~nl5 othørwl&e due mny bli withheld by Contractor on lI'CCOOnlof døfaotl~ wOll< not rt!medled, eI.ima fltød,ellldöl1CG lnatcallng pTobablKIYor tiling of clalm~, laUure at Subconlf'j¡CIOf lo make Ilaymenl~ Properly to Itl Sub-aubcön!ractolll et IO mal<!! p8yrMnl$ ror l'IIII!eIi,1 or labor,. or a rallSonabk¡ doobt Ihal tile &Ihlei Wolle can be campiere£! (or Itle balanCé IMn \Jnpald. If 1110aOld CQIl$e' are not removal! Wllh1nIIIwnly.lWo (72) hOUfll altet Subcoolraclor'¡¡ rllç'(llpt ()fw~lIon nolillII, Coolr!lClor may rectlfy lhe 80me at Subcoolracior' IIxpllns9. Colltnlctor may oll'set 8galnst øny lums due SubœnltaClor berelJlltler the amount of any ßquldated or un-llqultiatØ1I obllgsllo!18 ol Subconltactor lo Cortlf8dJlr. whether or nOl arising DtII: ai Ihla Agral!menl, Subcontrs c:toragl'llslIlO bø bound by all !he pravlslon~ of 1116Prima CaMel, Inllkldll'lg, bl.it natlmbd to. pmvtalons. reIaUng IO quanVdas, me8111ln1mll'ntlind paymanl, oOOng" ordøt'1l,extra wolle, variations In Plans andlar I5lteoondltlon., tima ølden810llt and d.fms. Con1raetor agreBlI IllatIt wíI prBsenllo Owner any reallOOitbie claim ror ~lIymenl, lImllllxtllntlon or any olher rolsoflsbklllllm which Subcol11raGlor, !o gooo faith çhO<lSØllIQ $\IbmH, provided thøt SubcontlllClllr agrees lo pl'fIipare all nollces In apropor m1l!1nartlufflcisllUy In advance or lhe time fQr noUee to permit Conlraçlor lo .ubmlt Ih. nol/ce, end $ublXlllbcto, IIQreei tg prep¡¡1Ii! the ducumenli!doll, compiv wllh ." other requ!r$rllflllll or 1M Pdm!! Cunl(~cl.lInd do aU Ihlngs l'HlOOSlöaryIQ ontble CllflIractor to pre~n1 SubCOlllractor'l¡ d¡¡Im. Conlf'j¡ctor agrees to cooperate wi\l1 SUbçonlract<ll'ln prQaenllng Subeootfilclor'a claims, and Subeantraclor ¡¡gmes to Cooperate Wllh Conlraclllt and ill! othar subcQntractors of Conlraç!or In prel>l!t1UngB~claims, to the e~lenl Ihalwch eooperalloo I. reßsonable, Subnontracl<lf may oo! Æcover mere from Contractor than Ihil amount Conlra<:t<ll'r(!eQVOf$ from Owner In ks recovery on daims, øllelIlI!> worK lind dlange oldt!r~ mtun be aUlhonxed In WIlting and signed by Cooii'_dor.

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• MeOIATlON:

1, WI..:'AVER. & lACOfJS ('èll'l'.~m!i(:HJflS. INC

thereof. sholl be submllled IQ modilltlon, IMIIl respee! to disputes thsllnvolve SC-i309-00DiS Contract

Prlar lo the flUng or any IßWlJuk, all claims. dIsputas and othor maUara in que$llon arl5fng out or, or ralaUtlIJ lo. this subconlracl, or Ihe bresch Owner lind Contractor. sudl mediation shaft ba Illll1elaamll'

manner and under the 1!aIl16 proC<ld\Jle S$ provided In lile ConlJacl Documents. except lhal a dedllion by the AteMed ahelll10l 00 Il condition precedent lu medlatlon.

2. Tlth. Article ahal! not be deemad a nmlÛltlon 011 any rights or remedias which Subconlraelor may hava under any Føderal or Slale mechanic's EISI! luw& or under any applicable labor ¡md malarial payment bands vnlns auch llghls or remedieS ara f)l<pr$ll$ly w~¡vedby him.

VtiNUE Thill agreemenland 1111ContrucIll hereunder shull bo gQwrnlld Md iIIterpreted undar the ¡aWe ollhe Slate afTexas and venue of any lawsuil shan be ma4ntainøblø onl~ in OeWiIi Co\lf1ly. Thxa~.

THE ABOVE SPECIFIED PROJECT rs TO BE COMP~ErnO IN STRICT CONFORMANCE WH AI.L SPECIFICATIONS AND CONDITIONS RELATING TO THIS AGREEMENT. IN ADOITION. THE PROJECT IS TO Be PERFORMEO tN COMPLIANCE WITH OSHA REGULATIONS AND LOCAl. STATE AND NATIONAL BUtLDING CODES. AL"fHOUGH HIE GENERAL CONTRACTOR HAS emm~OLOVER THE QUALITY Of' ALL WORK RELATrNG TO THIS PROJECT, THE SUBCONTRACTOR IS AN INDEPENOENT CONTRACTOR IN ALL RESPECTS; THE SUSCONTRACTOR IS RESPONSIBLE FOR HIS EMPLOYEES, HIS SUIlCON1'RACTORS. MATERIALS. EQUIPMENT, AND ALL APPLICABLE TAXES, BENEFITS AND INSURANCES. THE SUeCONTRACrOR IS RESPONSIf.lLE FOR COORDINATING HIS ACTIVITY WITH OTHER TRAOES AND PROMPTlY C~EANING UP ANY SURPLUS OR REFUSE V'A1ICH WAS t;REATEO BV THIS WORK.

InCLUSIONS: SUBCONTRACT WORK: SUPPLY ALL MATER!Al., LABOR AND EQUtPMENT NE:CESSARY TO COMPl.ETE THE FOLLOWING SCOPE OF WORK tN ACCORDANCE WH THE PLANS AND speCIFICATIONS, IN CONJUCTION WITH APPROVED SUBMlrTALS AND SHOP DRAWINGS, AND SHALL INCLUDE BUT NOT NEC5SSARI~Y Be I.IMITEOTO THE; FOLLOWING:

PER PLANS AllO SPECIFICATIONS: OMllloll15 .,.ctI I nlcal

exCLUSIONS: Pee quote dp¡'ild e126113 ATTACHMENTS: 2011'( (oCiMDDI!§r partia! 'MlIY~r gfblQo,!lQ!ll! Samp!g cettlOcate ofln!!ucgnca Remarl!S-<;Qfl1wonI3.lldf Sample OwlSta!g oflo6U!!l!1cg.pdf ~ CfiI!lj/jcak!gt ea.vm!WL:!I~ S\lbcoDltIl~!ot ~øDlillr,Form.dOCl! rax ~mp! C!!ltll1cata,PDE IGlDIlIliIlQIleller lo subcontl1!c!ors,doc ~I

COSTeOD!; I DESCRIPTION I TYPE AMOIlNT •1 tI IHVAC Systems J Other $125,971.00 i_ Glr.nd lotal: $125,971.00

W.llver &. Jacoba Conlllruçtol1l, 11IIl. AfrJll1)h $(INIo .. 301 Cooperative 'Na" 5122 Lllonhard! CUero, TexIIs 77IlS04 Ssn AnIonio, le1<3lö 18233

SIGNATURE DATE SIGNATURE DATE

W8.JOOO0013 Weaver ¡¡:, Jacobs Cofl$lruCWs. Inc. Page fl orll Printed On; 0812012013 ONa PM

TAB J

WeAVER & JACe)!)S Contract c< lMX'flll !f:'f\JMs. IN!:.

• SC-1309 ..00015 Weaver & Jacoba COllclrl.lclors, tnc. Project: 1309. Taft High School Frnnl Oniee &. 2013 Improvemants 301 CooperativE! Way 400 College Sireet Cuero. Texas 779~4 Taft, Texas 76390 Phone: 3(11-2.17-1)300 Fax: 3Il1·277-9274

HVAC Systems DATIil CREATED: 07/2312013 CONTRACT COMPANV: C(uGs(tJftd~ M~eh~~i~ai.ï~~.

.,. -CRSAtÉÖ BY:' ~ CMS BflOlOW~kl (W,aver .& ¡¡OOe. Crestwood Ja.:ob. COn.t'lIttolíl,IIIC.) Vlctolla, Taxas 77901 301 Cooparali\l!l Way PhoIla: (361) S7ß.asae Cuero, TaXAS 71954 Fa~: (361) 576-$423

CONTRACT STATUS: Appm~~d EXECUTED: No

START DATE: ESTIMATEn COMPLEJ'ION DATE:

SlGN!!O COH'rRACi FlacEIWD DAle: ACTUAL COMPLETION DAT!!:

D¡¡;rAVLT RlirI'AlHAGE:

DGScRIPTlON: GENERAL CONTRACT DATE: Augual20, 2013 OWNER: Taltl.S.O.

-400 CoIkllle Slteal Taft. TX78390

PROJ£CT/JOBSlTE AIlORESS: Tift fll!lh S~ñIH)1 frowl Omoll'nd 01btr Impl'IIl/allMlItll 2JJ13 1,í02runcon Tart, TX 783111)

ARCHITECT: Forrol/ll(own & Msoelales Corpus Cilrlall, roxns MODIFICATIONS OR AODEHDA: None

COMMEfiClEMENT DATE: August 20. 2013 SUIJSTANïIAI. COMPLETION DATE: ht accordanœ with Conlrllcl Ooc:tll'l'WlllW SALES TAX< This prO{ocll. tax exempt. Celiiftcate Is encloaed. PROGRESS PAYMENTS: SUBCONTRACTOFI PROGRESS PAYMENTS WIll. BE MADE NO LATeR THAN I) WORKI'IG DAYS AFTER GENERAL CONTRACTOR RECEIVES PAYMENT.Conlr~áor shall pay SYbCO!'iTadar monthly progress paymen!ll, $vbCOl'lll'llctor Ihall provIdé Contrac!<lrwilh monthly estimates by the 25th of ench flIIlI1Ih and....Jlll_ p_l payment at appr!lwd estimates siluRbe pald, The lIIl10unlof each prOgl'e!ll1 Jl!!Iyment lo thø Subeonlractor $11411be "'l!llllla Ine pørœn!age of cOOlplotion 1III0000d to thB liOOlraclar ror tha Work of Ulls Subønl¡aclClt awNed to lne contrllct sum Ilt thIS wbconlrecl plus thlllII'IIOIIl'1I allowed for matarlaI! end equipment suitably 1Il0rnd by lhe Subeootraclórle6& IhI! ag9regale of prllVlollB paymants to the Subeommctor IcslI_1_O__ pareem ralaln.ge. 8atonllauanøa au progre .. paymelll, 1II(I.uhconlfaotl1r Ihlllliullmilltllfdenclluu.rletøry to tile Contractor tflattllllllls før m.r:.rlaIand .qlllpll'll!fIt, lind iii known Indllbllldnen connected with thi SuIUlontraow'. warft. hava bMn utl.1Ied lind dltdlarl.d fOl' tb. pI'$l/lolJII. perIods 10rwllith payment hq lH.n made. A complew lhilt ø1 your sulHlubcOIItrllClol'$ Ind rnaJormaterlllt .uppll.,. must be .ttach.d to thts lubeontncl on tII.'ul1Jl ptovllfed.

Provided Ihere hu baen na breach ar delault undar lhis Mlislef SUbønlrllCl Agreemfll1l. CGn!tactor shall make payment ollll1elaUer oftlle !oHOwlllg dales. 1. On or beforeIIIe 20lh day ol the foloWlng month: 2. VIIlIlIn nve days of reœlpt Ilt Ixe payment 110m ÓW!1er: ::1. WtItdn n"" day$ of SubCQnlractor wriog any bre$ch of contfilct, fnclutllng, bUl nolllmiled tø, having been noUIIed of fallure IO perform plJßu.ollo Altlde 17, notllh:alion of Intent tø lile liens or !Jlner clalmø IIl1d Of Ihe Mn¡¡ of such IlelIa Of oilier cramm by 4ub.aobCOlltrllClors and sllppll!f1I of Sub<:oolraClor, ra_ure lo provIde required Insllr.n~ alld bofIdOl, Md raiure lo Invoice In IJCCQrd9tll» with lhe terms ct thi. Agr~l11ent. PaTtlai Lien w.ive11l from esch Subtontllictor', sulJconlfactor$ 2nd suppllCf$ _haU oonstllutll salillfaClory e\Adenee lila! ø# accoUIIIs havø been paid illull. Notwllflatllndlng th.. fMegollIf, Subcillltraotor Ag,eeslhat Cont,aclot ahalIlIever b. OOfIgaled lo pay IkIbcanlnctor untilii' any t:llr~um.tençlllf, """Ieh $ubconrnetof hu submItted a p.ymelll raquest. Owner. paymellt lo Contractor ObØgAtloll1O pay Illa Subcontraclot .nll Subcolltractor', right to _elve ,It.'

unr" .. and !.WIlli(ulldII .re rllCfllved by CaRMelof In MI, 1081J any IIIIPIl~ble ,ebllnaue, CI'I.".,'1111't9 wark .nd mltatiall for bo .. cl.lllditlon p,,;,çedent ta Contractor', pallment. Thi. p.r.Ur.pluh" noC b. con.trued .. I Ume of payment eliuse. 8I1b1)onl,.cI01 hllmby .çknowlodgos that It lillsumIng the r15kof non-P.Vll\llnt by 1fI. Own.r. Th .. condItløn prte.dlnl aleo .pplla. IOéontracw's obllga1lon to p.y chang. ordanl, rat.ln agil or ffnal p.ymtn!, If any, .ltd Contractor'. Inrela. of il fight of offset .hall not b" li br.,çl¡ of .. y paytnlnt prol/lailln her<lof,lInd Ihilll not ~ conlllrullld !til billing IIIviolatioll oflfl. Tex .. Trult Fund SUMes.

W&J 0000018 Pago 1 ofB Prinled On: 0812012.013 Ol :52. PM

Wt"'AVER. &. JACOBS Contract (:WWJ'IUi(;n)u~.IJIIC.

Se-i309-0DOi5 • Can'melor shall never bø obIllIaled tø ply tGtalnagø lø Subcontlllctor until Conlrlløtorhaa rIIcelved .JI cf Contractor's retalnage In ML This paragraph IJllpOllUld.' aUotlt"r provlslon.M thla Agrum.nt. Ind any conlllatln; l¡¡nQuaglllhall be modified or de.mad \0 be aOll511tenl htrólWilh.

CSRTIFÆO PA.VROLI.: NOM

ACCEPTeO ALTERNATES: None

UNIT PRICES: In accordance wRit quole

SUBMITTALS: SUBMIT Atl SUBMIl1'ALSISHOP DRAWINGS ELECTRONICALLY; PLEASe CONTACT PROJEèT MANAGER TO CooROINATE:

INSURANCE fWQU1REMENTS. A) Commeroll. G.neral Llatllllty 1. Commercial Generallløbinl'l with Ihmls of irlsuranœ ornotre~IIh"l $1,000,000 eaeh OCcurrence, $2,000.000 ProducWComplateli Oparalioos A!I!lr'll!lat&,$t ,000,000 PersoN) & AdvertisIng Injury, $lilO,OOO Fill Damage Llmll (any 0119 flr.l, $6,000 Mad!l;al fxpansø (an, onu peroon) and $2,OOO,OOCl GenllfßI Annual Aggregate. Ir 1tle Commercial General Usbllty c:ovarage conIalns a Genera' Agglllgattl LImit, Buell Ganerai A¡¡W6l1ste shall apply separataly lo each project. 2. Comillllrclal GanerII' liability QQverago shall be wrfllon on ISO Oceurretlce form CG 000112 07 or a subsillut& form providing aqulvalan!

cowrage and shall cover flswat¡< err.'ng Irom pramlsaa, operallons,lndapendool contractorIl, pr()dueta-com~feled operaUons, and perllQl1al and advertil;Ing Injury. 3. l3l!oofal COrltra<;lof. OWMI and aWother I'lIItlllS required of1h8 Genentl Contraclor, shd ba IndUPlld \lSNurllds on the Commen:!al General Llab~lIy uSi"g ISO AddlUonalln$ursû EndafSllmonl CG 20 10 11 85 or CG 2() 11l10 01 ønd CG 20 37 1001 or CG 2033 til 01 or IlO endorsement prov!álng oquiwalllllt wvvl1lilQ lo the addllklnallrnlllradll. ThIs Insurance for lila addlUonallnsUrlJds sbøll be as broad as the cav,r9111! plovidad fortha named InsUI"lId auboonltoctor. It shall apply 88 primø¡y and non·çontrlbutœy IMUl'1Inee I)eforo any olher Inwrance ar self.ínsurance, InmudlnUIlflY deducllble, malnlafmtd by, or provided to, tht! additional Jnwred. 4. Subcontractor shull maintain Commercfal Gonenl Llabmly r:cvarllgø for (1eII1f and lIIllIddltionallnsullIds for the duration of Iha prQject and maintain Compl$ted Operations COl/el'1l1l8 (aIlIself and each additional Insured far at ~allhree (3) year;¡ lifter r:cmplollon of the W<llk.

Bj Autømablkl Llelbll!ty

1. Bualneas Auto l.IablNly with limits of at leut $;1,000,000 I~r eacll sedden!. i. llusfl18l1s Auto CovetlI!lo lOO.t I"dllde COI/fIfago fOf "abIBly arlSing autot 1111ownlKl.lelli&d, hlrad, am'lI01'H!wl1ad automotßllIlI. 3. Gener~1Coniraetor, Ownar and aWolher J)ørli<:~ r91lulred of Ule Genjlral CQnlraGlor, "hall btl Included liS insllrIJds Dn tha aula polIcy.

Cl COIIlI1lefcl., Umlmlll.

1. . Umbrella limits mUll! be not te$4lhBn $2.000,GIXl Each OCQIlrellOO <lOO$2.000,000 G_rai Annt/al Aggregate 2. Umtll'1l.a cowmga must include "'nsureds all antilles Ihalllle IIddllluMilnsufOOs on !he Commercial Ganeralllabilily. 3. Umbralla ÇQvaf¡¡glil far BUch addItional Ineumd$ aIløD IlPply all prlmllJy arul nOlHlonllillutory NUI'IInœ bl1fo(U IIny o!her ¡"'Ul'IInce ør self· In~uranC<l. iI1c1udino any doollGÍillla, maJnlalned by, or Pfo~ldlld IO. !he addillonollnaured o!herlha!llhe Con!merelel Clenaral LlabHIty, AulD Llab.lty, ond ë'mployar$ Uabllliy COVllI1l!j&S maintained by tile Subcol\lmctor.

O) 'Mnkcl'$ CompensIIlIan lind £mpkiy'll'll U.blhty

1. employers Liability Insurance I!ml~ø of al lesat $1,000.000 each «eddenl (or bodily Injury by eceldanllUld $1,000.000 lIach employee for Injury by dlsealW. 2. lNhem IlPPMooble, U.S. longshOr'llllm;l Hllborwo!kel'$ CompeIlJllllon Atl EndQrJllm8m shall be attached lo the pollq. 3. WIlere sppUcable. II'" MariUm" Cover~g" Endol'lJement wll be aUadlod to Ille poley.

Ej W"ivar o, Subrogation

1. Subconvsolorwalves øll righta øgslnst Con!faetor. OWl'Hlr, end Mhilècl and their BIlanta, ol!lc;ers, dftectOi1l. Bnd employeu for recQ\IIl('f of damage' to Il1a eldent IhelIlI damall8$ are covered by œfflmerelal generalllsbilily, commørclal umbleØallabillty. bllÚ1_ auto lIalltrlly Of warnell> compensation and emploYél'llllllblRly Inlilltanoo maintained per req ulrement staled above.

1"1 Notlfkl«llO!I of cancell_Uoll, NQn·Renf\n' ilt Material CIl_ngll In COl/e"QO

1. Subconll'llc:!ofS 05nlt181 liabMity. Autolflllbila liability, Umbrolla Uablilly and WOIkers' Compensation poMdßll shall be a",dorssd la støte IIlliI Conll'llctOf will b¥ noURed all!lwlil30 dayaln advance In the allOlnt of cançellallDl'l. nDn.fenewal. or material cllan¡¡e In ctlVelllga ct said pojlQles and the aubconlrsc:tor will replace "wMIendeavor" with "musl notify" In 1tl&ir Cortiflc~te of IMUnJnce,

Gl ClIl1lfi<llltOll of InsuraNce

W&J 0000019 Pllge 2 ora Printed on: OSf.10/2013 01 :52 PM

315

• 1. II.

WEAVER & jA(X C()m'J'fIlIG'I'OIlS.

..JBS INC, SC ..1309-00015 Contract

Subcorrtractor shall provide Contractor with valid œrtlncato9 £IIrnauranee prlnr IQcornmencemelll olV/arl< verifying said Insurance requlrementa hava been mel. AltDched lo ¡!!ich œrtlficaté ol inslJl1Inco shall be II Mpy l'lf IhIl AddlUonal Insured emW$ßrnenl that I' purl of tI1e SubcolllraclQf$ CommlHdill GIl~eral UebJUtl'Pot¡çy.

Insur'Rflll C.rtllle.~ •... raqur"ct to i)tc submitted on th<l Ace oro 1011f1.Your Insu_œllgtnlahould bø contact~d Imfflldfaœfy Ind nclllled to forward the e,rtlfleate to our oltlet. You will not bI.now.d an thO' JoblIta until. çopy f. on m.ln our Cuura olflc •• Plealt nole tllat yuur contrllet .nd any pllym,nlll duo will be h.td until till. hQ been "c.lvell, It II. your ftaponolblIItl/lo fumllih nfil ceñlflcaco. wh.n OUlTent covlragflllllplfllS. &ubconlrat!ll could .,. nuU and \lold It you IN'a ullilble to obt.Jn Workatli Compensation eoVál\tgt, you .hould flOUrv 11$ Immedlatllly If 1f1l11'Ø la a problGM. Subcgnlrtlc!gr. W!)!'klng fM vou wN¡.'lo be '1gul!'!j! tg !Ubmit c'!tl!!ca!l!' 9f Inf!lr!!!!c., Ng Eltq!!!tIon" SONO f.tSQlIIREMENTS; NIA

CLEMlUP: Each subconlrllétor la rnspol1lllbla forcleanllp and haul oll of his own Ir48h lW!¥. The jObsileauperll1tandenl WIRdolarml"o the tlegrl!a of cklanup I1IQIJlted, You willgoi 000 veMI wamlng by our iup6l1fllendenl. If your walk Is IlOt cleaned up, we wlU do It for you and back ch~r¡¡e yeur $uboonlrtld accordfngly.

IIACI<CHAAGES: B.ck charges genßfal1y will nol bli aKowad without willUm aulhorlmUon 110mlho Weavaf & Jacobs Constructors' project Manager. You Will be bilde eharged by weaver'" Jacob. Conslruclors for;

1. Cleanup IIproject sita Ifyou løll to ~rfQrm afler avemar wamlng 2. Work thai Wepver '" Jacobs CanGlruetols 1$(orced to complete for lIllfIISInclUdëd ullrl<!ry<lur$cope tlf work thøt your fim¡ I;¡Æslo QQlIlple'" I" il llmely manner. 3. l.,on9 OIslollCll phone cnargca milda by your Ileld: pefaonnel IO vourotfce onuppflers, and all personal ~al& pfus tln ,dmir1lstfflKII!HMI'llIt. 4. U$!I of IMlover & Jacoba Cwslwctof$ iob!lta equipment and op~fator In performing any of)'OIIf scopa ol work on !hU¡ project

Elael<chargoa botwllen lubcO!1lraetonl Jhnurd bil 8ubmll!ed In a Ifmcly mgnl1ar (30 dsy:;) lo IIIC PreJect Suparinlandenl. ThollO 11'11only bo alloWedby wlitlen aulhorlza!lon bdlWoon boll! parties ßIlG wltll flnal appravlll of Ul$ Plo[aet Manager. Rlt(¡U£>STS FOR EXTRAll OR CHANGE ORDeRS: AlL CHANGE OROER,$IIUST 811H WRmHG. CHANGe ORDERS MAV NOT BE DoNe "T THE JOSSITE LEVEL AlL REQUSSn FOR EXTMS OR CHAN(Ui ORDIiRS MUST COME THROUGH me PROJECT MANAGIl~ IN THil HOME OFfICE. lHE ONLY 'NAVTa CHANGE: VOllA CONTRACT AMOUNT IS T"ROooH A WRITTEN CHANGE OROER FROM OUR OFFICE, PAYM£NTS 'rO SUSCOÑtAACTORSlllUPPLlERS: Q¡lllractor.mi Subcontractor agMe lhallf Conlractor III any filllD beßavtls, In Its IlOIe¡ud!¡menl, thai Subcontractor's suppllars and/or subcofJ!r.I~lars may OJ)t be paid' by Stlbconlraclor, CO!'llraC!Of may eleet to pay any such subcoooact()!3 orsuppkrJ dilQCIly by J()jnt ehaele and ma" be anUtted to deauct!ll'll/ such Sml. Pllid from sum, dueto Subconlractor. Contractor'. decision to pay SlIbconltllclol', !iUppIIOI$of lubeontt.ctola dheUy Qf by Jolnl'checlt iihsll no! bo consfdered Il breach ottilia Subconlrad. FlUAI.. PAYMENT: Fln.' !léymllnl Illall bo dw wMn Ille Wolk dllscrbld In th¡~lIul!colllrad Ii Uly cotJIj!lelsd eod perlormed in Ilc~ordarn;e willi It\!! contracl dOf,;Urnonlll.apPfCMId by Iha Álcl1Jleoi. acceptod by Ihe Owner, IIIld m!alnage for tllal p.>rtlon otlhs wolle has been fi!celved tromlhe owner. Bøfors IslIUUIlCilof final paymeol, !l'HI Subconll1lelor 8hall :IWmIlnllidonCtl sllUalaClöljI to !he C<mlraclor1hst alf payrolls, bills fur ma!ørllll and aqulfment, and aflMllWI1lndebtooflflSll cOl1t1ect~dWith Iha SUbcOlllraCl.or's work havo titlen sl,Illsfiedand discherg<!4. SUBCONTfV.C't'OR'S RESPONS[aWII!lS:

1. TIle SUbOOflllllclDr shill be bound lo lile Conlredor by Itle ferm$ of thls 8gra6~nl aM of Ih!! Contrae! Documents bIIlY/een lhe OWoor BIld Conllllelor. and ahaH IIlIlIIJmlllow!ll'd ContrJlclor an Ihe obflgllUons and n!'PQ",lbi~s whieh the Contractor. by those dOGumentít. nsulUe$ lilli/Iud Uls OWner. 2. SuboontraclQt ahaillake 1111 nOGeS811!j1 p/llClluOOI1S lo pr<lhlct Ille wolk or olher Iradea fnlm daMage caused by ilia Ilperallllns and ,hølf bø (1llIIIom;ll1l11, therefore, If said work 13damaged liS lIl'Øatit of Subclintmctor's negligence or !he neuRllenee of hl$ empluyet:lll QrpersolllI under contract lo him.

3. The &JI:I<:oI1l1'l1clOl'lIhalllllke all roa$ooabl<t lafety preC'iluUQI1$wilh tIlllPeCl to hIs Work, snllil comply willi øM$BfelV m018utll8lnHiatod by the Coolr.efor and wilh øll appbble IlIws. ordlnllnœa. lul118,r~uløUans ond' OrdOll! or allY publio authority for Iiu! sMaty of peroom or property In accordanoo wHh lile requiremenla of tito Conlnlel OowInooltl. The Subeonlraclor aha. ropall wllhln IlllIllI days lo 816 Cont(aClor any injury lo anli of tho Suboonl1aclor', omployen althe sila. It l3l!rth6l' agreed by sild between lhe partles henlto Ul.l Subcontractor helllin ehall hdd harmielII and Indemntfy Cantrselor for Iny and an penalliM .sse:\ae-d agamet COfltrador as a rellllil or v1olaUonof lI1ø OCC:U¡;81lonølHeaMhand Safety Aet and al'requimmel\1$ flIlat<l4lhereto it sutil pllnally Of penaIlies .111&$$."Od or levied Ila II ~ull of øny IIIoIIIUonof said Oa:upallonal Health III'Id Safety Aet by Sub<»nlrøetor or any of Jllld Subcontractor's omplOyOO$,agenl8 or ¡ndep~'Il1dijf1\contractors working undar thll dll1lelfon of said SUb¢lU1l1l1G1of, Failure to telmbllf1l11 Contraclar alIali haw !he elre;:t of adowln¡¡ COnlrllClof to withhold for ils own benafll the amount of $ueh pellalty uut 1)1ooy pnymenl$ dile uoder1halerms of Il\!s eonlrad. ~. Subccnlralltor lIhlIIInot lIs$llln 1111 or ¡¡ny port ef thIS 8ubcontrBclllor any amountll due Ol' IO become duo under ft1iS subcOIItract Wilt\ollt WritIllJl consent af Conltactor. 5, SullçontraelOr warranta thai all malftfbilS Md aqulpment fUl'lli.sh$d and IlICorporaled by him In lhe Pralsot !ilia. be new ul1es8 oUlßrwl$!l søedned. and that a~ WQfk under thlG Subcontract shall be good qualltv, Iree f(gm faults:ood defool3eod In COl1formancewith the CQnlfll<;! DocumanII.

O. Subcontractor agmea Ulat Ifhg should neglect to prOllllcule the WOrkdlPgElnJlVand properly ör 'a.1a perl'orm any prmdSlonBo(lllla SubcontnlCl.

the Oonltac\or, after Ihma worklng dllYS' written noUee lo Ula SubconlraC\Of, may, wl1llOulpre!udlœ lo any olher remedy he may hava. make

W&JOOOOO2:0 Page3 ota Prtnted On: 08l2D12013 01:52 PM

Contract SC ..1309..00015 good SlIch deRdoneies and may daduCl the eoat themal (rom the payments ínnn or hereafter due subClllltraclor. Amounts owed to subcontractor an oíher projects With Weaver 8. Jacobs Cons(¡lI~tors, Inc. may bil' llrithheld III saUsf¡! any fndebtednen an thi!! project.

7. Subconlnlctor agrees IMt CMlraclor'~ equipment Will be avaltable la Subcontractor ol1ly al C<lntraC!or's dlAmUOn and on m~tull"Y salilfaetlll'¡ ferms.

8. My ctløngB in Work from DraWings ancl Specifications Df the Contract Documents IIrdered In wrtUng by cemrscícr shall ba adhered 10 by Subconlraclllr and shan noUIlvaldale thiuubcOOllacl and t"e result In additional cost ofClodlt ahall be reduœtl to wllltng and signed bV Con tractor and Subcontrnclor.

9. Subcontractor sha.11<looperate ~~d coordinate with oll1er subconlraclors and Conll'1letor wtlere warle Inler1~renco mIght reø~fI. and shall cooperate with Contract!)' In scheduling and perfonnlng his wolle lo lIvuld conl1lcl or intJ¡rference with !l1I1 work ølo1MnI.

10. The subcontractor shall ~ramplly submit shop drSMngs ~nd .lIlI1p11l9 aa required In order lo perform hls WOi'kell1ciently, expedNIQualy and In a manner Ihal wHI nol cSUlla dlliay In the prooress Qr tha Work or t!le Contractor or other Subconlrnctora.

II. &ibcontral:lor ,hall give at noUeaa and comply with all law., ordilIances, rulflll. ragulaUons and ordilIs oføny pubIc authority bearing on Ille pertormance ofth& Work under (his subcontract. Tile Subçonlractauh.U RBroLlfeand pay tor all permH$, f1!es .nd licenses naceønry for the uxecuUon of Ihe Welk descrlbed hi thn Cllntmot Do<:IImentsliS llppllcable lo thts SWeonlracl.

12. SlÂlconlnlctQr shall comply with Federal, Slata and Icx:allax lawI, IOdat Sl!curlty aCUl. llnemployment cOlnptlln5ation acl$ ¡¡od \II~rkmon'& compeRsaUan aels insafilr as app!lçable lo Ihe Pßrformance of Ulls subcontract.

13. Subcontractor agrees that ali wollt shaH be done 6ubillCl ta ftnallipproval ol Ulll Ard1ltacl. and thø Archllecr& docfslan in OUtIlera telaled to DrUIIIe .trect ~h.lJ be r.,i!II.

14. 14, INDflMNIFICATIOfI: TO'Tl£ FUI.LEST EXTENT PERI\I1TTBD SY L~W. SUBCONTRACTOR AGREES ro INDEMNIFY, D!;FEHD, AND HOLD HARMLESS THE OWNER, CONTRACiOR AND CORPORATIONS WHICH OIRECTt.y OR INDIRECTLY l'MROUalt ONE OR 1110RE JNTERMEOIARIES CONTROl., OR ARE CONTROLLED av, OR ARg UNDER COMMON CONTROL MTH (lOf4TRACToo, ANP THE DIRECTORS, Of'I'ICERS, AGENTS, AND EMPLOYEES OF OWNER. CONTRACiOR AND ol' SUCH CORPORATION ALaOO WITH ANY OTHER ENftrY l'fOR WHOM INDEMNIfICATION SY CONTRACTOR IS I\EQUIHEO UNOSfI THE PlUMe CONTRAer, AGAlNST AlL LIABILITY AND CLAIMS FOR:

1. 1. DEATH OF OR INJURY ro AtfY ANLI ALL eMPLOYEES OF SUBCONTRACTOR, AND EMPLOYEES OF ANY Of' sue· CONTRACTORS' SUBCONl'RACTORS ANDIOR SUPt-USRS; AHD 2. 2. PROPERTY DAMAGE TO PROPERTY OF SUB- cOH'I'flACTOI\ ANOlaR SUSCONiAAOTORS' SUB· CONTRAcrORS AHOIOR SUPPLIERS, INCLUDtNG THE I.OS8 OF USE OF PROPERTY. .

tHE INDEMNlTY CONTAINED HEREIN INCLUDES INDEMNIFICATION fOR ANY AND All EXPENSES AND ATTORNeYS FEES RELATED fa tHI Cl.Alt.1S DUCRlSSP-ARlSlNG OR: ALL£~eo 1'0 ARISE OUT OF OR IN ANY WAY TO SU&CONTRACiOR'S 9REACH 0I'TMI9 AOREEMaNT, EVEN IF $lJeH CLAIM OR LlA-alllTY IS CAUSED IN WHOl.E OR IN PART 911 THe NEGLIGENCE OF AHII INDEMNITEE, IT DelNG THE EXPRESS INTENT OF THE PARl1ES THAT THE SUBCONTRACTOR INDEMHII''' tHE CONTRACTOR EVEN FROM THE OIo'l'HER'S AND CONtRACTOR." OWN NEGLIGENCE. SUBCONTRACTOR ALSO AGREES TO INDEMNIPY THE OWNER AND CONTRACTOR AND HOLD IT IfARMLESS FROM Al.L EXPENSES, INCLUDING ATTORNtiV'S I'SBS CAUSED BY OR RELATED TO ANY BREACH SV SUBCOH'l'RACTOR Of THIS AGREliMENT. SUBCONTRActOR sHALl.. SE RtlSPONSIBLE FOR DAMAGE TO OR LOSS OF THE suBlET WORK, WHETHER COMPL£TED OR UNOER CONS1lWCT10N. UNTIl. RE8PON!lIBIUTY FaA 'fHa WORK HAS seEN ACCEPTED BY THE OWNER, AND SUBCONTRACTOR AGReES TO INDEMNIFY OWNER ANC CONTRACTOR AQAfNST ALL flXPENS¡¡¡ AND COSTa CAUSED av ANY SUCH DAMAGE OR LOSS FROM ANV CAU1.IE,EVEN IF SUCH DAMAGE OR 1.0.991S CAUSÈD!fI WHOLE ORIN PAAT ay THE NEGLIGENCE OF ANV INDEMNItEE.. SUBOONTRACiOR WILl. AUW TAIŒ PfU¡QAutlON91'O PROTECT OTH!!R PORTIONS OF tHE. WORK. IT IS AGREED WIni RESPECT TO ANV LEGAL UI\IITATJONS NOW OR HEREAFTER IN EFfECT AND AFFISCTlNGTHE VALIDITY OR ENFORCliAalLITV OF THE INDEMNIf'ICATION OBLIGATION UNDaR THE ABOve PAMOMPH, SUOH LEGAL lAllATiONS ARE MADE A PART OF THI!! INDEMNIFICATION OBLIGAiJ(lN AHO SHALL OPERATI! TO AMEND THE INDEMNIFICATION OBLIGATION TO THE MtNIIUM WCTENT NECESSARV TO BRING THE PROVISION INTO CONI'ORPMTY WITH THE REQUJRIiHENTS OF SUCH LIMITATIONS, AND As SO MODlFlliO, THE INDEMNIFICATION OSUQATION SHALL COHT'Nue IH FULL FORce AND EFFECT. the IndemnlßCilUof'l oblt¡¡auon$ under thlll Subconlrlict shan Ilat b~ Uml!éâ In any wly lIV lIny limilaIJon Ol! the .mount or!ype or dlJmøgsQ, compenasUon. or bßnents lIi1yable byar for the Sub~ontractor IInderworker'a CO!1lperntaUOn _Wi.

dl&sb.l\y benefit ae" or other~mpløyee OOl1eti1s $~I. and ,ball SlItOnd lo Include any acUon& brought by or In the name of any employee of 1M Subconlføctor or olan)' lhIrd party lo Wlhom or Subçonlractor may sublel il pari of the WQlk. the ebUgallons the SUbcon!rllClor l.If1~r this p"ramrllph :!høll not extend lo thellablNty orthe Arcl1l!aCf. thi> Atchitøct'll consunanla. and aganla and employoes of any of thom erlnlllg oil! of lI1e prepol1lHon or 8f)plOlial Of maps, drawings, oplnlill1S. reporl$, $U~ Change OnIelS. dealgns or lI¡Jocl1iooUona. or ilia gMng Qr or falluro lo give direCtions or ln8lru<:Uons by the Architect, the ArchitQct·~ conwltMtlh and agllnl$ lind omplOyell'S ol any of them proVided sucll gi\dn.g or (aJlul1Ila ¡¡Ivo Is Ille primary caUSIl of Ille IrtUry or damage. (¡ONIMCTOR'S ßESeQNSIBll.mes:

1. Cunlraclof shaH be bo~nll h, Subcontractor by tila loons of thill aQroementund of the Cnnlract Oocumenl$ belW6«1l11ó1 Owner and Contnlctor alld ,hBII a6~UI11l1lowald Subcolllr.lellK allIIle obligations lind retpO"61b1lllles ll1alllla OWtlar, Ily lhosl! Dowmel1l$. lInumes toward Centrado!, QI'Id Ihlll1 have thll beneGt uf al ñghlll, fsmedli,,¡ lind redles'II Bgal"«t the S\.IbconlraClOf Y/nlcll the Ov;nar. by I~ DOllUmeflb, has against Contractor. fnsor.... Ila øppllcobla lo \hill lubcoolract. prov¡~d tl1al wh!!ra ¡ny provl91on ofllle CornIa&! Oocumenls bnlwool1 OwnQr and Contracter 1¡¡lncollsi.len! with any provIGlon In Ihlac agreem!ll'lt. this agresment.haR IIO~.

2. CanIllIcoor $ha. prOl11ll!ly l10tify Subcontractor of alIl11odlficaUonllo 1110contfiltt bel.wllen the Own;¡r arid Corllruclor, wh¡~h ¡Illeet this subcontract and which were IS$ued orøntel1ld Into $lIh!JQquent (o tha øxucuUon of lilIs sybcootraCl.

3. Contractor shaft maka no demand for HquIdated d8mage$ fou!clay In 8ny sum In axce$~ ofsuctl amount ae mal' be speclflçally nIImed In Ihis 6ubconfmcl, and no Iqufdated dlll1lllgos shall 00 as_ed aglRnAt lhl& SubcontractQr for delaY' or ÇgUllUI attributed to 01her tubcantrøclors Gr etl$lnQ oul$fde Ihe $cope orthis ~bcont ... <:t.

4. Conlmctor shaH not g¡V~1n$I.uCtiOnllaf ordef'$ diracUy to <lmployeell or ....orkmen of subcQntractor Qxcepllo persons dasl¡¡flaled as authorized mplesenla~ve1jof Subconlrllctor.

6. Conlrar:\l:lt shall pel1'l1l1Subcontractor 10 be ptesent and to submll eVÎd"nœ In any medlot!on proceeding Involvíng his rl!JhlS.

W&JOOOO021 Page·UfS P;lnlêd On: 110120/2013 01 :52 PM

W£AVliR & JACOBS CONST¡¡¡W'/'OII~. INI:'

Contract • SC ..1309 ..00015 EI Cønfrac10r shall permll tho Subo»nltoClor to lixerolQø wIIslel/or tights Contractor may haV& ooder Ihe Confrllcl OoctJmeRhl In Illø CI10lœ of mediIIloN! in anydlspukl, ¡fille solo caUllII o(thø llispuklis Itle 'Nork, malerfal¡¡, eqllipment, r1ghl& Ot responSlbiJUQll oUIIII SuboonlraáQt: or rf Ille ¡¡IspUlS ¡mieNe! Chll SubCllnfrllclor and IIny olher lIubc(lf1lraelof or ilubCllntrødórs jofl1!ly, CónlTllotor sIlal pemlil !!lem In 8)((!rci8e &Ilen righhl !Olnl!y.

TEflMIHATlON: A. TERMINATION FOR DEFAULT SllotJld SubCllntraclor at any timo 'a.l0 wpply fl sulllelenloombllf of IIIkllled WOl'kmen or II sullk:løtT! quafÚlly of maleriøla of proper qllaHty, ar Call In My rGSIlilct IO prosaCUlllll1e Wotk cevlifIld by Ihiil Agreement MII1 promplness end dUlg8nœ, or faH to pElrkltm wl)(k 01 Ille qualily reqllmd by the Prime COnífacl, or rail in IhII perform.nce of lII1JIóf Iho agreements herem il9(l!allled. or sMuk! ¡¡ny workl'tllln performing wOli< CGVefedby 1111$","Tooman! engage In Il allike or OIher work SIOflPlIIll!I, or cesse to wom due to picketing or other auch lc:tMt¡I, Contractor mlly. In any of $uch _nts at ilS IlPlian, a!lllt $êvl!nIY-rwo !12l MUflI wIllIlIn rnMIœ kl SUIlCllnlraewr, proIIlde afly 8IIch labor 1100 maler!lll$, and 4educt thø cellllt_of kom ¡¡ny money ll1en dua Ot !MIe lIi11lrlo becema1lll&&Jb!Xll1lrilctor.or.¡llllnyofauebelllll1l1\.CllI.Ittaclo!.may.;lltIIoptlon.l!lrmlnal!! !Iv! _Ioymen! ollMicentraclQr t()f Illa Subtel Wort UI1ÖØr1llls A¡¡reemanl, and &hall have tOO fllItl1 lø .nlef upon lhø-premlQes and tn tak& poasl'IlI6Ion, for II\ø PUfJlOGo of IJI:IIIIple!!ng lim Sublet WQr!( hereunilef. ot olt the maler!Bl!;, 10oJa, I!IId ~!!l1l tI1ørøon. and IQ lInfsh II'Il'I Sublet Work and prolli4e the Illtllßrlals. ll1erefO'l'!, eilher willi It$ own employoo$ or 01her iIOO(;onltactors; and In case of sudl dllICllntlnuanee of tho emplovmenl by Contraclof, Subcoflllaclor ~1111nøt ba untilled lo røœ!ve any further p¡ymlll1($ ullder Ihll A9I'eflIIllIl'Il ør otherwise, but $l'IIlll !1S1Iertheless rlilmalfllitlble for BIlY damages whlch Co~traClOt incurs. If lile expenlUl& InllUmld by Conlrll!<ÍOr in oomploUng the SUbie! Wort! shaN exceellins unpaid bolanoo, SubCllrrlraotor $I1a. pay the dlWem!!!:e tø Conllllctor, sklng wllh any ø1hør damage, lnCUfrad by Camelor ali li result af S\rtK:;Ol1lradOf',¡ dera~lt. Conlraclor .hal have a '",II upon ~ materlal$, loo!$ and equlpmllnl tilklIn pa$lUIsslon af tOo 'SlitIlfe !flø ¡:¡lIvm8~1 thareof. SuIlçorKrøc!Or !tl.Y b& flaI.lk¡ lo Cootraotor før all com Md damages Incurred by Contraclor due lo \hø l'$Iillm or performance by Subcenlractor. the falIurII of SUbcorrlrlle!lJf to keep !he progms!> of Its Wllm up lo Ihal of Conlrodor Øl' ailler !raoos, or II\ø fallure lo exeel.lle ita work lI$ ¡froeted by Conftactor, Subcontractor agraes to (!l(etI.!le anli _gnml!lllll neCIJllIBIY to make avaU.bIa to Cometar own.

am:IlI'Il'I \Ile ri¡;¡l$ of .~lrIIGtør 1111derIlUl'dWo orøm .1'1(1 .ubCOfllrIdS, COfIIr;Ictorwll! crldit Subcootractor's aCCIIlmt wllh !he vafu!¡ of lila milterlal!l and liuppller, GOutGd bulth.re Will bl! no eliJdlI tor IiJnt on equl¡mlenl SUIlçonlmclorwlllllIlmlMU COnlraelor In O.WIlI COUnty. T(!l(l!$, lo 1M eX!$I'Il!hat Conltactor'a .Xlla"", Including sliomeyG I'oos, In CO!l1Jll8llng Ihø Sublet Work .nd pr_dIn9lJ11der this AI1ldc Il)(~ede the balallCll WIIIdI woul« hswl¡acomé dua lo SUbcontractor under thla Agrl!elllllllt hild SiJIle011lroÇ\Ot comploted the Stillet WOOl.If Oonlr.dori! ttXlllIDlle IIIlelU! lI1an ilUd!lItIlQlII'tl, !I1en SubCllnlm(;Úlf Ihd reoelve Øa ¡.. MI1l'll ano IOIt cemptlOsmJonlta aClual CMllI1ññ, IlI!WISlIIY and mllsonabfe costa of pel'formlllllllte work IO lite dale of IIIrmlnallOl1, u detetmllIM by IIL1llIt Of lUboontractor's reoord&. pbs e t\l~sGfloNe 1IW'ku¡) før ovortlead and prolIt. Irut tn no _nt malllllCÎl amOUl'l1a due btmmdtlr lIK1:eed tIlliIløwl Subcel'ltract AmOUIlt. SUbCilltllllclOt hereby Wl!1ves all Claims llllalnsl eoolrado!' tqr ¡ImRIs, r!!l1l on equlpmQl'lt ar othar dlmlajJelll1llated lo any Ilfoœedlng which GonfrlJc!ot InIilltUle$ under Ihls Atlide. thI! Pó, IIl1ftlfl !hat the IOrmll of fim¡ IIri1d11 shlllllIe binding i1 COnftIldor In good fll4ll1lll1s døtemllned that SUbcenftllc!or'lI performanœ III inadsqt!lllo and !hat the ()wo¡¡r Of C1ln!røclor Of.r subClló1lrllåQr l'nay be damll9ed, or Contractor may he unalde to pedarm fl\! CIIflfrlJtlllai ®IIgatkll'l$. unlsss Coolractor proll8adS Und!!f 11'1111 Arlll:!!!;. The ~ agree Illat BUd! delermbrtloo& W1l dflllwll to mako and muat be IlI!!de under pr.sslng drcunwlanœs, Md agtee lo be bound In !lC!lOfdanœ with thi" Arlldlllnllghl of the drwmelanCllS çOottó_ COfIIrIIdor .llho .1lI!!

sud! ~ci8ll)n lImado. Should CofIIJ¡¡c!Qf'll dllcilion IO IerminllÙt SubCllntract fot qefa¡ijt lie ~1efmí'Ted by iii ¡;oIlIt lo bt iii ~ I:em1lnlltloo.lMllllle ~i!Orl for derauillilall lIulomatil:'lilly be Cllnwrtød lo a IIIrmlna!ion tor COIlvenleoca of ttre Contractor. lIS set olll billow. lind Subeontraclara damagC$ ~alI n. deltl'l1lined all aøt ou! 11'111lèrmll'lø!lon lor COOllllrlMlnce of the ConIraCklr, • e. TERMIflATlOH FOR CONVENIENCE OF CONTRACTOR OR OWNER a-ml Con!raClor may, at II!! opllon, M¡rnfnate for COIlvenlem:a lt1e SUblet Woll< III wIIoIe or, !l'om IfmtlIO Hma, In part, lit 811Y!fma by den fIOIIO!! to Su!leQnlrllotllr. such nodee allai spedfy the luctanllO WIIlm !he parl'olmance ofworlt I, termlnelèd t!lld !he e&I:lIve daft! ol sUCh terminlIlion. Upon rflCOlipt of such nllliœ Subt':onfrlletor !hall (II) lmmedtalllly dlilcontlnue the SuIlIal!J\.bñ¡ on th. dalll and IO the ex!ent ~~llllllltl! nOllced piece no furth., ól'ditl'$ or .ub~ilè.lI$ filt mlltlllla1s, IlINIea, or faClilll!8, Olhllr thm !l5 may be !lIqIirlld for Cllmple1foo af SOëh porI!oo oflbe Sublet Wor1c !hili fi¡ not lIIrl'íllnlltsd; (bl prompII'¡ obtllln eMCèllalloo UPtlfIItrIll!! alltlsfarto¡y to General Conflactor on lIl1 pulthftae ordam, ioo-&ubeootram.. refilaI., or any oll\ør lJgreem\lnllJ e~ lOt Ihø pert_ oflhe letmlnilted Wl'lfk er tmløn lliose aul1ll'lñtMtil to GeœnlfConll'llclar!lll dlrecled: (c) allSlf¡l General C!lnlroctorifllhê maIni_nell. pl'otedlon, I!IId dlllpGSI!lon ofwnrk in prOGress, plant. tools, equlpmen!, pl'llperty, and !IllII!!riøl511l'4ulmd by SubCllnttatl10r Of fl.lll'l!ilhell by_SubCllnftaotllf_IJI'I(I.,-tN4conlrllel;lIld(d)lllImpIelll pedormanœ1lfJJhe_Suble!JM:llk_wbid1_15_!lQ( tetminated. Up¡¡11 any Sl.!OOlenninaUon, G_I Conlrlilclor shall have /lO IlIlIillry for any dømej¡l!t.l!'lclldno 1o~1I....t M~dPIIlød prolllll. As lis _ right and remedy, SubCIInlraclof mal ba pIItd Ihe following: (a) all .moUllla due and nolllreWolJ$1y paid to S1.ibClln1fllcl<Jrl'ar Subltl WotlI cem¡:lIll!eà in accordanœ IIIíIh the Subcontrac;t prior lo 111m no!fœ of termination, end for work lhIirealler completad as IIllllcililld In 6udl/lob; (b) mtionable 114miill.tr.lNø CllilS øf 1I81ttno and payiflg ¡;I¡¡im$ ari~ old o(!hll telfl1!nalkln of Sublet wm: undllf tlub-auùconlrad3 or purchase ordmr; (ç) 1V8sonablø CllM$lncuIrlld in demab~.nd ltIl!>dllIll~itilln oflllildúill material, ¡¡¡Mt aM equipment; and (d) li 1lI41l~ ørorit M Heros (b) and (elof!his 1!3(~ph, 1I'I!tHI _nt my Il!l'Il1lnaUon cf lheSubeotllnlClor for default II!Idl!r!lv! dl!ll'ilull terminalIon lIrtIde !J!&Iet delfirmlned to h_W blllln Irn¡!roporj the WIfI11t!IIUan lIhllll automaUœDv bil de~ II termlnMkm tor ClIlW$nience lIIld !ha SUbcoolti.taOl' !liai!bt Irnlled in II' IlIcovery $bidIy to the SubCOlllmclD( ,hal! allbmlt within 30 døys .Iler reeeipt of nali08 1)f lerminllllon, II propOdll for an ødjUtlmenl in cempí!lWllon, inclUding aD Incurred CIIiIIll i'I~ l1er$in. Gene1aI COnfrlJctOl' shalf røvklW, ønøl)lte, snd lII!Ilfy aud! ptopoIIaI, lind, If not 3a1ñl.d. !leguUste an ElQwtable adjUllIm8llt 800 Ihø $ubcøn!taot lII'laH be am~ed ill wrillng accordingly.

DEFECTIVE WOIlK AHD CLAfIl/lS! Paymentl oIl!a~1l due may be wilhheld by Cooltllclør on aeQJun! of defédlva work nol remedied, dlllm! filed, Il~rtœ Il1Illcallng probatlfJly ot ftl!ng af ctillms. (l!Iture ol SubCllnlfllctor lo make PIIYIlltnts property to tiG Stib--&ubClll\lráclOr$ 01'10 make llilYl'flMts for rolilerial ar labor. or • ft3lQnllblt doubt lMllI!e Sublet 'Nom œn be compk)tllÚ for the balance !hilen unpaid. If the økt œYSml1!fl'i l'loi femnved wllhln IlllYeflly·IWO (72) houri .lter SulIOOIIlnIC!or'$lVœip' afwri\ten rmtiœ. Conndor mey 1lIC!lty Ihe lI8m& al $\lbCllntral::tor' expenae. CoIl!raGlor!Tlll)' offt¡at 1I110Íllll any BumB!lue Sullcentllldor hefelll'tdtr lhe amounl af øny Iqultløll3d or 1II1·liqt.¡idøted DbRglltiona ol SuboonlraClar to CoofruclO!', whalhar Ql'lIllt arlsl!1g øulof tIlllI Agreement. Subl:onlnlclor IIgn11ll1 til bt bound by .Ilho pravjj¡(oM of !he Prime Contract, Indudlng, buIllO! Umited tø. prolli$lons ,.. Ia!illg to quantllm, meæuremenl and paymenl. llÎlllllllo ornera, QJ<jr¡l worll. VØtiav_ In !'flins and/or -'18 cendilIolUI, lime tlderlllOM amí çI¡¡lms. ConIrector IglllèS Ulat It Win pt'eaaolt!O Owner any rtluonable daim for paymonlllmø eldellslCrt or an)' ølhllr llItiIIfI.uto iIem wl1ld! SuboonfrllCklr, In good faUh ClJOO$4l$1O 3Ubmi!, provided thai Sub¡;outractor illlr~s to J!l'!lparo all nollcell In a ¡:)roper maMill' $UlfIdontly In lldVllllœ of!ha tiJl1il for notice to petmII Collttllctor to Mlbmlt the nollœ, !If!d SuIloonlr.<lIar 6l1l11'" W Pf'lIP'IIIlIIM dm:umet!laliort, comply with an øthor requlfemllnls øf thll flrima CoIlltllCt, 100 do øH lI1ir1gs necessary to enable Con!taClorlo PlVíleot SUbCllnfraclOr'l! daim. Coolractor agrecs to eól:lØel'ate wllll SUllconll'lldnr In pl'!!$$1lln(¡ SubCOfll.fllctoñ! elølms. and Subcontractor .<lUIO Cl)opefllte with CcnIrattor and al other ~ctilt* øf ConInIl:Ior III pmsendng IIU døm. to I!'te e:¢erll thllt lIuen Cl)OPlllllllonII IlIlIsonable. Subconlraetor may nøt IeCIlIIIIfmoro from Cof!trllC1or IMn ll1I.llJlllOunt Contraelor reeolltN! from Owner 11'1111 l'Ileovery on claIma, all Plldra work aod d!anga orderIl mlJ&1 bl! IUlhØ1ÍZlld In WI'ItIrIg ami 4ig!1Sd by Contradar.

Printed On: 0812012013 01 :52 PM

WEAVER & JACOBS C:ON$'tIU:t:1'OIlS, INC.

Contract • Se..i309-QOOiS MEDIATION:

1. Prior lo the flUng of any lawsu1t, aU <l'alma, disputas and othor maltonlln qlUlstion ;lrhll,,!! QuI of, or relating lo. Ihls subeol1tra<lt. Of me brllach tIlDraat, uhaa be ~\lbrnilled to mediadon. WIth raspocl to dlsputßslhat 1n\IQlve Owner elld ConlroClor. such mlHlli!lIllII ~~a.lle In tM ~QIM manner and linder ¡høsorne pro~edure as prollldød In the COlltfllct Oll~menl!l, excapt that Il declston by the ArchII8<lt ahall nol bø a condition precedent t¡¡ madlalJM, 2. "Thl$ Article 5h,1I nOl bit ôeemed II limitation on IIny I1ghIS or remedies Which SubClll1tractor may have under any Foderal or Stale mechaniC's lien laws or under any app~cilble laber snd maierial paymenl bondS unlea! such rlgllt& Il( nimedlea are axprossly w~I\lGd by him.

VENUE Tnis agrrlfllT1ent and all Contracts hereunder shaU be gowmed and interpretad under 1I1e law. ol the Slatil ofTexas and venue ohny lawsuil Shall be malntalnable OI1ly in DeWit Counly, TOJen. THe AßOVE SPECIFlEO f'ROJËC'\' IS ro ee: COMPLETED IN STRicT CONFORMANCe: IMTH ALL SPECIFICATIONS AlliO CONOITIONS RELATING TO THIS AGREEMENT. IN ADDITION. THE PROJECT IS TO BE PERFORMED IN COMPLIANCE WITH OSHA REGULATIONS AND LOCAL STATE AND NATIONAL BUILDING CODES. ALTHOUGH THE GENERAL CONTRACTOR HAS CONTROL OVER THE QUALITY OF ALL WORK RMTING TO THIS PROJECT. THE SUBCONTRACTOR IS AN INOEPI.!NDENl" CONTRACTOR IN All. RESPECTS; THE SUBCONTRACTOR IS RESPONSIBLE FOR HIS EMPLOYEES. HIS SUBCONTRACTORS, MATeRIALS, EClUlPMENT, AND ALL API'UC!lSlE TAXES. ElENEFlTS ANa INSURANCES. THE SUaCONTRACTOR IS ReSPONSIBLE FOR COORDINATING HIS A.CTlVlTY WITH OTHER TRADeS AND PROMPl1.V CLEANING UP AMY SURPLUS OR REFuse IfIIHICH WAS CREATEO BY THIS WORK.

INCLUSIONS; $UBCONTMCT WORK: SUPPLY All. MATERIAl. LAflOR AND EQUIPMENT NECESSARV TO COMPLETe THE FOl101MNG SCOPE OF WORK IN ACCORDANCE WITH THE PLANS AND SPECIFICATIONS. IN CONJUCTION WITh APPROVED SUBMITTALS AND SHOP DRAWINGS. AND SHALl INCLUDE BLfT NOT NECESSARilY BE LIMITED TO THE FOLLOWING:

PER PLANS AND SPECIFICATIONS: Olvl$lo It 111Mlch.nlelll

EXcLUSION': Per quol.;laklô 6126/13 and emd daled 8J1IlJl3.

ATTACHMENTS: CWff fOr SlIpO!'" eO!l19! waíyer gf LIgn doC){ §Dfllple Cert!!!œ" li! kllul'lln~ ßœ¡sr1!s·Comrßeo!!!,lIdf §.@.!!lpl!! Cer!jOCllo of m,vmnø.ru!l ~ Ceditlçl!le of pqymenl.m Sl!!)çgnlragorSuQIlIW Eoon.doClC r~ ~!lmn\ C!lrUf'q\e.POF Tranamiltallnller lo sub,¡ortrac!o£§.!!oç W9 EO!JI!JHIf

OIiSCRIPTIOtl TYPE A~~OUN1'

" 1 COST CODE HVAC 8J$lIlma wIthout DOC CentroIs Other $136,'"'67.00 :I T~$~nø" BalanclllQ Dltler $4.380.00 3 Thatm aSiats & 1/';111"9 Other $1.500.00 Orand Toùl: $142,347.00

Wu"..t .. Jacob. Conslfuclol'll,ln.;. CrosarOlld. MechanIcal, Inc. 301 C<toparadve Way 50B e. Cle$lwood Cuero, TIIXII& 7795 .. Vlctarla. TeKB$11901

SIGNATURS DAm SIGHATIJRE

W&JOOOO023 Weaver" Ja!Xll:¡s COl1tlluctors. Inc. Page 60f6 f'rjnted On: 00(21)/2013 ()1 :52 PM