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HomeMy WebLinkAbout2008-06-10-9:00AM-REGULARw ,t e BRAZOS COUNTY - BRYAN, TEXAS NOTICE OF MEETING AND AGENDA BRAZOS COUNTY COMMISSIONERS COURT THE COMMISSIONERS COURT OF BRAZOS COUNTY WILL MEET IN REGULAR SESSION ON 10 JUNE 2008 AT 9:00 A.M. IN THE COMMISSIONERS COURTROOM OF THE BRAZOS COUNTY COURTHOUSE, 300 E. 26 " H STREET, SUITE 115, BRYAN, TEXAS. 1 . Invocation and Pledge of Allegiance -Commissioner Mallard_ 2_ Call for citizen's input and/or concerns- 3_ Presentation by the District Clerk updating the Court on the NAC'o Prescription Discount Card Program_ Consider and take action on agenda items 4 - 33: 4. Request from the Sheriff's Office for an additional $50,000 from Contingency for Gasoline (line item account 65350000)- S. Request From the Sheriffs Office for an additional $26,000 from Contingency for Vehicle Maintenance (line item account 65950000)- 6- Request from Jail Administration for an additional $35,000 from Contingency for Gasoline (Division 28002000; line item account 65350000) 7_ Budget Amendment 07/08-34.1 thru 07/08-34-8- S. Personnel Change of Status. 9. Payment of Claims. Office of the County Judge - 300 East 2e- St. - SSUite I I4 - Bryan, Texas 77803 Fax: (979) 351-4503 ~.3.^7 I C/~ Ali tY it ~3-!3 Commissioners Court Agenda 10 June 2008 Page 2 10. Agreement with ConocoPhillips Specialty Products, Inc. for development and tax abatement in Reinvestment Zone #25 for commercial - industrial tax abatement (previously tabled). 11. Cancellation of the 17 June 2008 regular session of the Brazos County Commissioners Court. 12. Resolution 08-011 relating to the approval of the Franciscan Services Corporation Obligated Group Revenue Bonds Series 2008 (St. Joseph Regional Health Center). 13. Order 08-008 prohibiting the sale or use of restricted fireworks, classified under 49 C.F.R. part 173.100(r)(2) (10-01-86 edition) as "skyrockets with sticks" and "missiles with fins," in the unincorporated areas of Brazos County. 14. Interlocal Participation Agreement with Texas Association of Counties consolidating the TAC Workers' Compensation Self Insurance Fund, the TAC County Government Risk Management Pool and the TAC Property & Casualty Self Insurance Fund into a newly created Texas Association of Counties Risk Management Pool (TAC RMP). 15. Contract with Turner Construction for the Brazos County Jail addition. 16. Request to terminate the commercial lease agreement with the City of Bryan for space in the Federal Building located at 216 East 26th Street, and submission of the required 90 days written notice. 17. Recommendations of the Brazos County Community Healthcare Endowment Fund (CHEF) Review Committee for FY 2008-2009: a. Family Practice Foundation of the Brazos Valley, Inc. $65,000.00 TAR WARS in Brazos County prevention program b. Hospice Brazos Valley $70,000.00 non-funded hospice care for Brazos County tobacco-related illnesses c. Stand Tall Against Tobacco $20,000.00 Stand Tall Against Tobacco prevention program d. St. Joseph Regional Health Center $10,000.00 Inpatient tobacco prevention educational videos and equipment. 18. Request from the District Clerk's Office for additional funding for the Jury Services budget as follows: a. Account 61415000, Petit Jury Expense $ 40,000.00 b. Account 61410000, Grand Jury Expense 5,000.00 19. Request from the Precinct 1 Justice of the Peace Office for permission to use the $600.00 in General Capital Improvement funds budgeted for a desk and chair to purchase two filing cabinets instead. Commissioners Court Agenda 10 June 2008 Page 3 20. Permission to accept donated property from Jason C. Galvez for the Office of the County Judge. 21. Tax Refund Application for Learon Dove Mack. 22. Change Order No. 5 in the amount of $17,200.00 to Madison Construction, LLP for the new County Administration Building. 23. Copier Lease Agreement with Documation for the Road & Bridge Department, with an upgrade to a new copier at no additional charge to the County. 24. Permission to institute a temporary modified bidding process for asphalt for six months, with the option to extend this as needed for an additional six months. 25. Permission for Rosser to begin construction documents for the Brazos County Jail addition. 26. Permission to add Adele Carboni Consulting to Brazos County's list of vendors who are exempt from competitive bidding for fiscal year 2008-2009 as per Statute 262.024(a)(4). 27. Consulting Service Agreement with Adele Carboni Consulting for assistance in the area of records management. 28. Request for permission to enter property of Virginia Parsons located off Hopes Creek Road for the purpose of lowering the existing tank spillway to drain water from a roadway culvert (on Hopes Creek Road) for the health, safety and welfare of the general public. Site is located in Precinct 1. 29. Acceptance of a Special Warranty Deed from the Edward Wayne Kelly, Sr. Trust for improvements to Jack Manning Road located in Precinct 2. 30. Payment Authorization in the amount of $132.88 to Wal-Mart from the Sheriff's Office for four (4) memory flash cards purchased in 2005. 31. Payment Authorization in the amount of $39.24 to Wal-Mart from Jail Administration for purchases made in 2004. 32. Payment Authorization in the amount of $1,037.54 to Wal-Mart from Child Protective Services for purchases made in FY06 and FY07. 33. Payment Authorization in the amount of $6,000.00 to John M. Hamilton, Inc. for appraisal of the 0.86 acres, lots I R & 2R, block 25 and 0.8609 acres, lots 1-5, block 7, City of Bryan, Brazos County, Texas. A purchase order was not obtained in advance. 34. Announcement of interest items and possible future agenda topics. 35. Call for citizen input and/or concerns. ~~v,~1o~~~e~~ 37 Commissioners Court Agenda 10 June 2008 Page 4 36. Agency / Board / Committee reports by Court members. 37. Adjourn The Brazos County Courthouse is wheelchair accessible. Handicap parking spaces are available. Any request for sign interpretive services must be made two business days befo(v~e~''Jthe meetin To make arrangements, call (979) 361-4102. COMMISSIONERS' COURT REGULAR MEETING JUNE 10, 2008 A regular meeting of the Commissioners' Court of Brazos County, Texas was held in the Brazos County Commissioners Courtroom in the Courthouse in Bryan, Brazos County, Texas, beginning at 9:00 a.m. on Tuesday, June 10, 2008 with the following members of the Court present: Randy Sims, County Judge, Presiding; Lloyd Wassermann, Commissioner of Precinct 1, Absent; Duane Peters, Commissioner of Precinct 2; Kenny Mallard, Commissioner of Precinct 3; Carey Cauley, Jr., Commissioner of Precinct 4; Karen McQueen, County Clerk. The attached sheet contains the names of the citizens and officials that were in attendance. Commissioner Mallard gave the invocation and then led the pledge of allegiance. Under citizen input/and or concerns, the following spoke: Chuck Ellison, 2902 Camille Drive, College Station a) Spoke on behalf of developers and requested a workshop on concrete driveways and mailboxes that were recently restricted by the Brazos County Subdivision and Development Regulations. He said that unfortunately, builders are listening to their customers rather than the developers. The County will not inspect or accept roads for maintenance because of concrete drives. A workshop or the opportunity to work Vol 109 Page 36 Commissioners Court meeting June 10, 2008 with the County Attorney is needed to come to a resolution to the problem. The County Judge said he would put a workshop on the agenda in the next two weeks. Marc Hamlin, District Clerk a) Discussed the Prescription cards offered by the National Association of Counties. He reported that the numbers continue to climb monthly. 1192 cards were used in one month and over $6,000 were saved. Bryan/College Station is #2 in the state of Texas right behind Dallas. 2 The next matter before the Court was consideration of was a request from Sheriff Chris Kirk for an additional $50,000 from Contingency for gasoline. The County Judge asked if this would carry the department through to the end of the budget year. The Sheriff said that he thought so. On motion by Commissioner Mallard, seconded by Commissioner Cauley, the Court voted unanimously to approve the request. The Court next considered a request from Sheriff Chris Kirk for and additional $26,000 from Contingency for Vehicle Maintenance. The Sheriff said that he had budgeted $45,000 and spent $52,000 last year so he expected this from the start. There are more vehicles and a few accidents and repairs. On motion by the County Judge, seconded by Commissioner Cauley, the Court voted unanimously to approve the request. Vol 10 Page 40 Commissioners Court meeting June 10, 2008 3 The Court next considered a request from Jail Administration for an additional $35,000 from Contingency for gasoline. On motion by Commissioner Mallard, seconded by Commissioner Cauley, the Court voted unanimously to approve the request. The Court next considered Budget Amendment #07/08-34.1 through 34.8 that would reallocate funds for Constable, Precinct 2, Road & Bridge Department, County Clerk, Non Departmental Constable, Precinct 1, Ag Extension, Sheriff's Office: Jail, and Sheriff's Office: Administration. On motion by Commissioner Peters, seconded by Commissioner Cauley, the Court voted unanimously to approve the budget amendments as submitted. Commissioners Peters and Cauley amended their motion and second to change 34.7 and 34.8 to reflect what was approved earlier in agenda items 4, 5,& 6. A copy is attached. The Court proceeded to consider the change of status of employees as submitted on the attached Personnel Action Requests. On motion by Commissioner Peters, seconded by Commissioner Mallard, the Court voted unanimously to approve the changes as submitted. The Court next considered the following Claims as submitted by the County Treasurer for payment: 7050603 through 7050873 Vol i OBI Page q I Commissioners Court meeting June 10, 2008 4 On motion by Commissioner Peters, seconded by Commissioner Cauley, the Court voted unanimously to approve the Claims as submitted. The next matter before the Court was consideration of an Agreement with ConocoPhillips Specialty Products, Inc. for development and tax abatement in Reinvestment Zone #25 for commercial-industrial tax abatement. Todd McDaniel from the Research Valley Partnership spoke on behalf of the abatement. Brian Thompson and Dawn Lawrence representing ConocoPhillips were also present. The County Judge questioned whether it was ConocoPhillips Specialty Products Inc. rather than ConocoPhillips Inc. Mr. McDaniel said if there is concern about this that it could be tabled until it is worked out. Dawn Lawrence brought paperwork showing ConocoPhillips, Inc. owns ConocoPhillips Specialty Products, Inc. Tina Snelling, Court Counsel, spoke on this issue, stating that ConocoPhillips Specialty made the application, but ConocoPhillips, Inc. owns the land. The Court cannot approve the abatement with ConocoPhillips, Specialty because they do not own the land. Also, the ninety (90) day discovery period in which the paperwork should have been submitted has expired. Mr. McDaniel asked if the deed were changed to reflect ConocoPhillips Specialty as the owner, could they proceed? Vol 101 Page 4a Commissioners Court meeting June 10, 2008 5 Ms. Snelling said no. She went on to say that the City had approved the tax abatement based on the information provided, secondly the ninety day discovery period had expired and thirdly an Attorney General's opinion says you are prohibited from retroactively approving an agreement. ConocoPhillips Specialties had to be the owner of the property as of January of this year. Commissioner Mallard stated that we have made tax abatements with others that didn't own land. Why now he asked? Ms. Snelling said she just became apprised of this law and just because you did it in the past doesn't mean it was right. Commissioner Mallard then asked if they could reapply. Ms. Snelling said if they withdraw from the City and start from scratch. Commissioner Mallard then asked Ms. Snelling to work with ConocoPhillips to approve the tax abatement. The County Judge asked how many times we have given multiple tax abatements to the same company. Mr. McDaniel said that their legal counsel, Patricia Meronoff does not believe we need to withdraw the agreement with the city for this to work. The County Judge asked Mr. McDaniel to have Ms. Meronoff contact the County's legal counsel so that no laws are violated. Commissioner Cauley stated that he did not want this discussion to portray the Court as not being business friendly. He said we just need to work out the details. On Vol 11A Page 43 Commissioners Court meeting June 10, 2008 6 motion by the County Judge, seconded by Commissioner Cauley, the Court voted unanimously to deny the abatement in its present form, but to work to remedy the situation. The next matter before the Court was the cancellation of June 17, 2008 regular session of the Brazos County Commissioner Court. Several members of the Court will be attending a conference out of town on that date. On motion by Commissioner Peters, seconded by Commissioner Cauley, the Court voted unanimously to cancel the Commissioners Court meeting of June 17, 2008. The Court next considered Resolution 08-011 of Brazos County Commissioners Court relating to the approval of the Franciscan Services Corporation Obligated Group Revenue Bonds, Series 2008 (St. Joseph Regional Health Center). On motion by Commissioner Cauley, seconded by Commissioner Peters, the Court voted unanimously to approve the resolution. A copy is attached. The next matter before the Court was to consider adopting of Order #08-008, Restricting Use of Fireworks in the Unincorporated Areas of Brazos County, Texas. Due to the existing drought conditions in Brazos County, the Commissioners Court determined that the normal danger of fire in the unincorporated areas is greatly enhanced. Therefore, no Vol 101 Page T4 Commissioners Court meeting June 10, 2008 7 person may sell, detonate, ignite, or in any way use fireworks such as skyrockets with sticks and missiles with fins in any portion of the unincorporated area of Brazos County. On motion by the County Judge, seconded by Commissioner Mallard, the Court voted unanimously to adopt the Order #08-008 Restricting Use of Fireworks in Unincorporated Areas of Brazos County, Texas. A copy of the order is attached hereto. The next matter before the Court was consideration of an Interlocal Participation Agreement with the Texas Association of Counties for participation in the newly created pool known as the Texas Association of Counties Risk Management Pool (TAC RMP). Brazos County currently obtains Workers' Compensation from one of the pools that have merged to become TAC RMP. On motion by the County Judge, seconded by Commissioner Mallard, the Court voted unanimously to approve the Interlocal Participation Agreement with the Texas Association of Counties and authorized the County Judge to execute the documents. A copy is attached. The Court next considered a contract with Turner Construction for the Brazos County Jail Addition for Construction Manager Services. The guaranteed maximum price (GMP) for the project shall be an amount not to exceed the sum of $45 million dollars. On motion by the County Judge, Vol 10 Page 5 Commissioners Court meeting June 10, 2008 8 seconded by Commissioner Mallard, the Court voted unanimously to approve the contract subject to court counsel reviewing and agreeing to the terms of the contract. A copy is attached. The next matter before the Court was the termination of a commercial lease agreement with the City of Bryan for space in the Federal Building located at 216 East 26th Street and submission of the required 90 days written notice. On motion by Commissioner Peters, seconded by the County Judge, the Court voted unanimously to terminate the commercial lease agreement with the City of Bryan and authorized submitting the 90 written notice. The Court next considered CHEF funding recommendations for FY 2008-2009. On motion by the County Judge, seconded by Commissioner Cauley, the Court voted unanimously to accept the recommendation of the Brazos County Community Healthcare Endowment Fund (CHEF)Review Committee and fund the following agencies for fiscal year 2008-2009: Agency: Family Practice Foundation of the Brazos Valley, Inc. Amount: $65,000 Program: TAR WARS Tobacco Prevention Program Agency: Hospice Brazos Valley Amount: $70,000 Program: Non-funded hospice care for Brazos County Tobacco-related illnesses Agency: Stand Tall Against Tobacco Amount: $20,000 Vol p Page 4 Commissioners Court meeting June 10, 2008 9 Program: Stand Tall Against Tobacco prevention program Agency: St. Joseph Regional Health Center Amount: $10,000 Program: In patient tobacco prevention educational videos & equipment The next matter before the Court was consideration of a request from the District Clerk for additional funding for the Jury Services budget. Due to the change of the law in the last legislative session, Brazos County is required to pay all potential jurors for their first date of appearance. On motion by Commissioner Peters, seconded by Commissioner Cauley, the Court voted unanimously to approve the request and allocated the following additional funds: a. Petit Jury Expense $40,000 b. Grand Jury Expense $ 5,000 The next matter for consideration was a request from Justice of the Peace, Precinct 1 to use $600 from the General Capital Improvement fund for two (2) filing cabinets rather than the desk and chair for which it was budgeted. On motion by Commissioner Peters, seconded by Commissioner Cauley, the Court voted unanimously to approve the request. The Court next considered authorizing acceptance of donated property from Jason C. Galvez. The County is being offered a framed United States flag with the names of all those who perished in the 9-11 attacks. The estimated value of Vol (0 Page q7. Commissioners Court meeting June 10, 2008 10 the flag is $10,600. On motion by Commissioner Peters, seconded by Commissioner Cauley, the Court voted unanimously to accept the donated property. The next matter for consideration was approval of a tax refund application from the following individual: a) Learon Dove Mack, over payment $25.86 On motion by Commissioner Cauley, seconded by Commissioner Peters, the Court voted unanimously to approve the tax refund applications. The next matter before the Court was consideration of Change Order No. 5 in the amount of $17,200 to Madison Construction, LLP for the new County Administration Building. On motion by Commissioner Peters, seconded by the County Judge, the Court voted unanimously to remove this item from the agenda. The Court next considered a request from the Purchasing Department for consideration of a Copier Lease Agreement. The new lease will require monthly payments of $353.00 for 60 months. On motion by Commissioner Peters, seconded by Commissioner Mallard, the Court voted unanimously to approve the agreement and authorized the County Judge to execute the document. A copy is attached. Vol I bq Page L+91 Commissioners Court meeting June 10, 2008 11 The next matter before the Court was consideration of a request from the Purchasing Department to institute a temporary modified bidding process for asphalt for six (6) months with the option to extend this as needed for an additional six (6) months. On motion by Commissioner Peters, seconded by Commissioner Cauley, the Court voted unanimously to approve the request and allow the Purchasing Department to obtain bids from the four vendors who originally bid on Bid #2008-034, every thirty (30) days for six (6) months and to extend this as needed for an additional six (6) months. The Court next considered a request from the Purchasing Department to allow Rosser to begin construction documents for the Brazos County Jail Addition. On motion by Commissioner Peters, seconded by Commissioner Cauley, the Court voted unanimously to approve the request subject to the Turner contract being reviewed and approved by counsel. The Court next considered an Exemption from Competitive Bidding Requirements of Local Government Code, Section 262.024(a)(7)(4). This is for the purchase of Professional Services from Adele Carboni Consulting. On motion by Commissioner Peters, seconded by Commissioner Cauley, the Court voted unanimously to approve the Exemption of Vol ~ 6 ~ Page 49' Commissioners Court meeting June 10, 2008 12 Competitive Bidding Requirements and authorized the payment for said cost for fiscal year 2007-2008. The next matter before the Court was consideration of a Consulting Service Agreement with Adele Carboni Consulting for assistance in the area of records management. The cost to Brazos County will be $175 per hour that includes all business expenses. The contract shall commence June 10, 2008 for an initial term of 90 days and continue thereafter on a month to month basis. On motion by Commissioner Peters, seconded by Commissioner Cauley, the Court voted unanimously to approve the Agreement. A copy is attached. The Court next considered authorizing work outside of county rights-of-way for the health, safety and welfare of the general public. The Road and Bridge Department requested permission to enter the private property of Virginia Parsons on Hopes Creek Road in Precinct 1 to lower the existing tank spillway to drain water from a roadway culvert. On motion by Commissioner Peters, seconded by Commissioner Cauley, the Court voted unanimously to authorize the work. The Court next considered acceptance of a Special Warranty Deed for right-of-way on Jack Manning Road in Precinct 2. On motion by Commissioner Peters, seconded by Commissioner Cauley, the Court voted unanimously to authorize Vol log Page SD. Commissioners Court meeting June 10, 2008 13 the County Judge to accept on behalf of Brazos County a Special Warranty Deed from the Edward Wayne Kelly, Sr. Trust for the expansion and improvements to Jack Manning Road. The Court next considered a payment authorization in the amount of $132.88 to Wal-Mart for four (4) memory flash cards purchased in 2005. On motion by the County Judge, seconded by Commissioner Mallard, the Court voted unanimously to approve the payment authorization. The next matter before the Court was consideration of a payment authorization to Wal-Mart in the amount of $93.24. This is a 2004 invoice that was never received. On motion by Commissioner Peters, seconded by Commissioner Mallard, the Court voted unanimously to approve the payment authorization. The Court next considered a request from the Auditor's office for a payment authorization in the amount of $1,037.54 to Wal-Mart from Child Protective Services for purchases made in fiscal year 2006-2007. On motion by Commissioner Peters, seconded by Commissioner Cauley, the Court voted unanimously to approve the payment authorization. The next matter before the Court was consideration of a payment authorization in the amount of $6,000 to John M. Hamilton, Inc. for two appraisals. On motion by the County Vol I Cl Page 61 Commissioners Court meeting June 10, 2008 14 Judge, seconded by Commissioner Cauley, the Court voted unanimously to approve the payment authorization. There were no announcements of interest items and possible future agenda topics. Under citizen input and/or concerns, the following spoke: Sheriff Chris Kirk a) There were 584 inmates in jail last night. 595 were there over the weekend. 102 of them were females. Commissioner Peters a) Commissioner Wassermann is in Colorado Springs, Colorado celebrating 50 years of marriage. Commissioner Cauley a) Accolades to Chief Deputy Clyde Collins for receiving the highest award from the Masonic Lodge. There were no Agency/Board/Committee reports by Court members. There being no further business to come before the Court, the meeting was adjourned. Vol 101 Page 6 CZ The foregoing minutes of the Commissioners Court meeting held June 10, 2008 have been examined and are approved in open Court this the Randy S County day of 2 Duane Peters Commissioner, Precinct 2 Carey auley, Jr. Commis Toner, Pr cin t 4 Attest: a en McQueen County Clerk 2008, in Bryan, Lloyd Vtas'sermann Commissioner, Precinct 1 Kenny Mall r Commissioner, Precinct 3 Vol 1 0 Page 5-3 Brazos County, Texas. BRAZOS COUNTY COMMISSIONERS COURT MEETING ON 2008 ATc Name (PL SE PRINT) Organization/Department CA 'R -V C~ Q4 17 1 A o - V tAl BRAZOS COU TY COMMISSIONERS COURT MEETING ON 0 2008 AT Qp~ Name (PLEASE PRINT) Organization/Department /A ~ Rf- t ~ol Scurt Jim 4 f G L ~ V~ BRAZOS COUNTY, TEXAS BUDGET AMENDMENT(S) FOR THE 2007-2008 BUDGET YEAR NO. 07/08-34.1 thru 07/08-34.8 On this the 10th day of June 2008 at a regular meeting of the Commissioners' Court, the following members were present: Randy Sims, County Judge, Presiding Lloyd Wassermann, Commissioner, Precinct 1 E. Duane Peters, Commissioner, Precinct 2 G. Kenny Mallard, Commissioner, Precinct 3 Carey Cauley, Jr., Commissioner, Precinct 4 Karen McQueen, County Clerk The following proceedings were held: THAT WHEREAS, on 10 June 2008 the Court heard and approved a budget amendment for the 2007-2008 budget year for Brazos County, Texas; and WHEREAS, an expenditure is necessary due to the necessity to meet unusual and unforeseen conditions which could not be reasonably included in the original budget adopted 11 September 2007, the following amendment(s) to the original budget are hereby authorized, as described on the attached page(s). ADOPTED AND APPROVED this the 10th day of June 2008. THE COMMISSIONERS COURT OF BRAZOS COUNTY, TEXAS. By Original: County Clerk's Office and attached to the original budget Copies: County Auditor County Treasurer County Budget Officer Commissioners' Court Minutes BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 07108 - 34.1 6/10/2008 FUND DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 0100 30201 100 60500000 CR Office Equipment 285.25 0100 30201100 67281000 DR Equipment-Electronic 285.25 Constable Precinct #2: Lam o To reallocate funds to oav for a shredder which costs $250 and should be properly accounted in account # 67281000. Prepared By: ifj Date: 6/4/2008 Department Approval Date County JLj ge ApjTroval Date L I DI Fif-~GE 5 7 BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 07/08 - 34.2 6/10/2008 FUND DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 0100 1560010001611300001 1 CR Contin enc 17,000.00 0100 15600100016722810001 1 DR Rental-Uniforms 17,000.00 Road & Bridge I l l l l To reallocate funds for the additional cost of uniform rentals per the current bid. Prepared By: ifj Date: 6/4/2008 Department Approval County OVI OPAU 59 Approval Date D BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 07/08 - 34.3 6/10/2008 FUND DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 0100 21000100 59100000 CR DDEA 4,550.00 0100 21000100 603600 DR Furniture 4,550.00 Count Clerk To reallocate funds to allow for the purchase of furniture. Prepared By: ifj Date: 6/4/2008 epartment Approval t Date County JucWe Ap-pfoval Date L 10 9 PAGE 5r~- BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 07/08 - 34.4 6/10/2008 FUND DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 0100 11000500 65320000 CR DDEA 6,020.00 0100 11000500 60500000 DR Office Equipment 2,301.00 0100 11000500 6794000 DR E ui ment-Tele hone 3,719.00 Non-Departmental To reallocate funds to allow for the purchase of two hone cards and telephones to be used in t he County Administration Buildin . Prepared By: ifj Date: 6/4/2008 U, ' ~ &0 BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 07/08 - 34.5 6/10/2008 FUND DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 0100 30101 100 60170000 CR Copier /Printer Supplies 300.00 0100 30101 100 65200000 DR Copier Maintenance 300.00 Constable Pct. # 1: Clark To reallocate funds for copier maintence for the remainder of the year. ~ j Prepared By: ifj Date: 6/5/2008 Department Approval Date County Judo Approval Date A 101 PA (P.1 BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 07/08 - 34.6 6/10/2008 FUND DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 0100 37000100 60620000 CR Postage 150.00 0100 37000100 71520000 DR Rental-Vehicles 150.00 Ag Extension To reallocate funds to allow for additional vehicle rentals. Prepared By: ifj Date: 6/5/2008 Department Approval Date County Jud Approval Date ~ BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 07/08 - 34.7 6/10/2008 FUND DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 0100 111001500 161130000 1 1 CR Contin enc 12,000.00 0100 28002000 65350000] 1 DR Gasoline 12,000.00 Sheriff Office: Jail To reallocate funds to allow for the Purchase of gasoline. This amount may not be sufficient to finish out the year. Prepared By: ifj Date: 6/6/2008 Department Approval Date County Ju,ge Approval VOL 109 PAGE b3 Date BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 07/08 - 34.8 6/10/2008 FUND DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 0100 11001500 61130000 CR Contingency 20,000.00 0100 28000100 65350000 DR Gasoline 20,000.00 Sheriff Office: Administration To reallocate funds to allow for the purchase of gasoline. This amount may not be sufficient to finish out the Prepared By: ifj Date: 6/6/2008 Department_,lpp;ayal /I Date County Juprge Approval Date q s T PERSONNEL CHANGE OF STATUS REQUESTS Commissioner Court Date: June 10, 2008 Department Submitting Information: Human Resources Purpose of Submissions: Consider and Take Action on Change Requests Department Submitting Employee Request Action Requested Request(s) Applies To District Clerk Mikeska, Jennifer Transfer in Dept. Scarmardo, Christy Transfer in Dept. Garcia, Rebecca New Hire Exposition Center Cogwin, Marlene New Hire Justice of the Peace, Pct. 3 Gott, Myra New Hire Juvenile Services Mayberry, Tony Resignation Sheriff's Office- Administration Collins, Clyde Cell phone Allowance Sheriff's Office - Jail Perez, Cristian New Hire Mulle, Stephen Transfer in Dept. Tax Office Taylor, Reta New Hire Veteran's Services Dixon, Art Resignation Yeppez, Johnny New Hire Approved in Commissioners' Court: June 10, i County Judge's or Commissioner's Signature: (This Copy to be attached to minutes) . 4 O 5 n'~ '.i1 7"b. E GENERAL CERTIFICATE OF BRAZOS COUNTY We, the undersigned officers of the Commissioners Court of Brazos County hereby certify that: 1. The Commissioners Court of said County convened in SPECIAL TERM ON THE ObAYOF , 2008, at the designated meeting place, and the roll was called of the duly constituted officers and members of said Commissioners Court, to-wit: Randy Sims, County Judge Lloyd Wassermann, Commissioner Kenny Mallard, Commissioner Duane Peters, Commissioner Carey Cauley, Jr., Secretary f and all of said persons were present, except the following absentees: ~iyd ' "~"and ' l , thus constituting a quorum. Whereupon, among other business, the following was transacted at said Meeting: a written RESOLUTION OF BRAZOS COUNTY COMMISSIONERS COURT RELATING TO THE APPROVAL OF THE FRANCISCAN SERVICES CORPORATION OBLIGATED GROUP REVENUE BONDS, SERIES 2008 (ST. JOSEPH REGIONAL HEALTH CENTER) was duly introduced for the consideration of said Commissioners Court and read in full. It was then duly moved and seconded that said Resolution be adopted; and, after due discussion, said motion, carrying with it the adoption of said Resolution, prevailed and carried by the following vote: AYES: NOES: p ABSTENTIONS:O 2. A true, full, and correct copy of the aforesaid Resolution adopted at the Meeting described in the above and foregoing paragraph is attached hereto as Exhibit A, said Resolution has been duly recorded in said Commissioners Court minutes of said Meeting; the above and foregoing paragraph is a true, full, and correct excerpt from said Commissioners Court minutes of said Meeting pertaining to the adoption of said Resolution; the persons named in the above and foregoing paragraph are the duly chosen, qualified, and acting officers and members of said Commissioners Court as indicated therein; and each of the officers and members of said Commissioners Court was duly and sufficiently notified, officially and personally, in advance, of the time, place, and purpose of the aforesaid Meeting and that said Resolution would be introduced and considered for adoption at said Meeting, and each of said officers and members consented, in advance, to the holding of said Meeting for such purpose; and said Meeting was open to the public, and public notice of the time, place, and purpose of said Meeting was given, all as required by Chapter 551 of the Texas Government Code. 5061863v.3 General Certificate of Brazos County -1- 3. A true, correct, and accurate copy of the information filed by the Brazos County Health Facilities Development Corporation (hereinafter called the "Corporation") with the Commissioners Court of said County on the day of , 2008, pursuant to Section 221.062 of the Health Facilities Development Act, related to the issuance of the Franciscan Services Corporation Obligated Group Revenue Bonds, Series 2008 (St. Joseph Regional Health Center) (hereinafter called the "Bonds"), is attached hereto as Exhibit B. 4. True, correct, and accurate copies of the resolution(s) of the Commissioners Court of Brazos County approving the bylaws of the Corporation and all amendments thereto, if any, are attached hereto as Exhibit C. 5. According to the official records of the Commissioners Court of said County, the current directors of the Corporation appointed by such Commissioners Court are: Kenny Mallard, Duane Peters, Carey Cauley, Jr., Candy Gallego and Randy Sims. 6. No action has been taken by the Commissioners Court of said County pursuant to Section 221.035 of the Health Facilities Development Act or otherwise to limit the effectiveness of the resolution adopted by the Board of Directors of the Corporation authorizing the issuance of the Bonds or affect the transaction represented by the Bonds. 7. A true, full, and correct copy of the Minutes of the public hearing held pursuant to Section 147(f) of the Internal Revenue Code of 1986, with respect to the Bonds, is attached hereto as Exhibit D. 8. The Attorney General of the State of Texas (the "Attorney GeneraV) is hereby authorized to date this certificate on and as of the date of his approval of the Bonds, and this certificate and the matters herein certified shall be deemed for all purposes to be true, accurate, and correct on and as of that date, and on and as of the Closing Date, unless an authorized officer of Brazos County shall notify the Attorney General, the Trustee for the Bonds, the Corporation, and the Underwriter for the Bonds in writing or by telephone, telegraph, or telecopier to the contrary prior to either of such dates. 5061863x.3 General Certificate of Brazos County -2- PA SIGNED AND SEALED the LO day of ~ ~j Wel , 2008. County Clerk, Commissioners Court (Seal) 5061863v.3 General Certificate of Brazos County -3- County Judge, Commissioners Court EXHIRIT A RESOLUTION OF BRAZOS COUNTY COMMISSIONERS COURT RELATING TO APPROVAL OF THE FRANCISCAN SERVICES CORPORATION OBLIGATED GROUP REVENUE BONDS, SERIES 2008 (ST. JOSEPH REGIONAL HEALTH CENTER) WHEREAS, the creation of the Brazos County Health Facilities Development Corporation (the "Issuer") was authorized by a resolution of the Brazos County Commissioners Court ("Brazos County") on January 11, 1982, in accordance with the provisions of the Health Facilities Development Act, Chapter 221, Texas Health & Safety Code (formerly Article 1528j, V.A.T.C.S.), as amended; and WHEREAS, Section 1.3(c) of the Bylaws of the Issuer provides that as a condition precedent to the issuance of obligations, the Issuer must obtain the approval of the issuance of such obligations by written resolution of the Commissioners Court of Brazos County; and WHEREAS, Section 147(f) of the Internal Revenue Code of 1986, as amended (the "Code"), requires that the Commissioners Court of Brazos County approve the Bonds described below to be issued by the Issuer on behalf of Brazos County, Texas for the purposes set forth in the resolution of the Issuer hereinafter described; and WHEREAS, the Issuer intends to issue its Brazos County Health Facilities Development Corporation Franciscan Services Corporation Obligated Group Revenue Bonds, Series 2008 (St. Joseph Regional Health Center) (the "Bonds"), pursuant to the resolution of the Issuer attached hereto as Attachment A and made a part hereof; and WHEREAS, the Bonds are being issued for the purpose of (i) financing the cost of certain health facilities, (ii) refunding outstanding Bonds of the Issuer, (iii) making a deposit to the reserve fund established under the Bond Indenture to secure the Bonds, and (iv) paying certain issuance costs in connection with the Bonds; and WHEREAS, a public hearing has been held by the Issuer with respect to the issuance of the Bonds, and notice of such public hearing was published in a newspaper of general circulation in Brazos County at least 14 days prior to the date of such public hearing; and WHEREAS, Brazos County finds and determines it is necessary and advisable that this Resolution be adopted. NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSIONERS COURT OF BRAZOS COUNTY, TEXAS: 1. That the issuance of the Bonds by the Issuer is hereby approved in accordance with the Bylaws of the Issuer; and 5061863v.3 " Af 09 rzr lip l r , J,,G -f 2. That the issuance of the Bonds is hereby approved for the purposes of Section 147(f j of the Code. APPROVED AND SUBMITTED this day of ~ ~ 114,e " , 2008. ATTESTED by: County Clerk 5061863v.3 County Judge -70 ATTACHMENT A RESOLUTION BY THE BOARD OF DIRECTORS OF BRAZOS COUNTY HEALTH FACILITIES DEVELOPMENT CORPORATION RELATING TO THE ISSUANCE OF FRANCISCAN SERVICES CORPORATION OBLIGATED GROUP REVENUE BONDS SERIES 2008 (ST. JOSEPH REGIONAL HEALTH CENTER) WHEREAS, Brazos County Health Facilities Development Corporation (the "Issuer") has been created and organized in accordance with the provisions of the Health Facilities Development Act, Chapter 221, Texas Health & Safety Code (formerly article 1528j, V.A.T.C.S.) (the "Act"), with powers to provide, expand, and improve health facilities (as defined in the Act); and WHEREAS, the Issuer is authorized by the Act to make secured and unsecured loans for the purpose of providing temporary or permanent financing or refinancing of all or part of the cost of health facilities, and to charge and collect interest on such loans for such loan payments upon such terms and conditions as the Board of Directors of the Issuer may deem advisable and as are not in conflict with the provisions of the Act; and WHEREAS, the Issuer is authorized by the Act to issue its bonds, the proceeds of which may be used for the making of a loan in the amount of all or part of the cost of financing or refinancing health facilities; and WHEREAS, St. Joseph Regional Health Center (the "Borrower") has requested that the Issuer take the action described in the Resolution. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE BRAZOS COUNTY HEALTH FACILITIES DEVELOPMENT CORPORATION: 1. That, the Board of Directors of the Issuer hereby determines that the health facilities project described in Exhibit A hereto (the "Project") to be financed with the proceeds of the bonds entitled "Brazos County Health Facilities Development Corporation Franciscan Services Corporation Obligated Group Revenue Bonds, Series 2008 (St. Joseph Regional Health Center)" (the "Series 2008 Bonds"), in an amount not to exceed $35,000,000, is needed for the purpose of improving the adequacy, cost, and accessibility of health care, research, and education within the State of Texas. 2. That, the Board of Directors of the Issuer hereby determines that the financing of the Project is required, necessary, or convenient to the health care, research, and education within the State of Texas. 3. That, the Board of Directors of the Issuer hereby declares its intent to issue the Series 2008 Bonds and to loan the proceeds thereof to St. Joseph Regional Health Center for the payment of all or a part of the cost of financing health facilities in and around the County of Brazos, Texas and in the State of Texas upon the condition that the Borrower will indemnify the Issuer. 4. That, the Board of Directors of the Issuer hereby calls a public hearing, required 5061863v.3 VA I Qq P;AGE 7.t . under Section 147(f) of the Internal Revenue Code of 1986, as amended, for purposes of discussing the Series 2008 Bonds and the Project to be held on 2008 (the "Public Hearing"). 5. That, the Board of Directors of the Issuer hereby appoints to serve as Hearing Officer at the Public Hearing. 2 5061863x.3 EXHIBIT B CERTIFICATE OF FILING 5061863v.3 i 7,.3 STATE OF TEXAS § BRAZOS COUNTY § BRYAN, TEXAS COUNTY OF BRAZOS § ORDER NO. 08-008 RESTRICTING USE OF FIREWORKS IN UNINCORPORATED AREAS OF BRAZOS COUNTY, TEXAS WHEREAS, the Texas Forest Service has determined that drought conditions exist in Brazos County; and WHEREAS, on the 10th day of June, 2008, the Commissioners Court of Brazos County has determined that the normal danger of fire in the unincorporated areas of Brazos County is greatly enhanced by the extremely dry conditions now existing; NOW, THEREFORE, the Commissioners Court of Brazos County adopts this Order prohibiting the sale or use of restricted fireworks in the unincorporated areas of Brazos County. A. No person may sell, detonate, ignite, or in any way use fireworks classified under 49 C.F.R. part. 173.100(r)(2) (10-1-86 edition), as "skyrockets with sticks" and "missiles with fins" in any portion of the unincorporated area of Brazos County. B. This Order does not prohibit: 1. common fireworks, small in size, classified as Class C explosives; 2. large fireworks devices designed primarily to produce visible or audible effects by combustion, deflagration, or detonation and classified as Class B explosives by the U.S. Department of Trans. [TEX. OCC. Code, Chapter 2154]. C. A person commits an offense if the person knowingly or intentionally violates a prohibition established by this Order. An offense under this Order is a Class C Misdemeanor. APPROVED this the 10th day of June, 2008, by the Brazq%CountyjQqmmisiqRers Court. ATTEST: RandyXms, County Judge C J Karen McQueen, County Clerk Office of the County Judge • 300 East 26"St. • Suite 114 9 Bryan, Texas 77803 • Fax: (979) 361-4503 71 TEXAS ASSOCIATION OF COUNTIES RISK MANAGEMENT POOL INTERLOCAL PARTICIPATION AGREEMENT This Agreement, entered into by and between the Texas Association of Counties Risk Management Pool (hereinafter called "Pool") and Brazos County (hereinafter called "Member") shall be effective as of the last date on which a party to the Agreement signs the Agreement. RECITALS: WHEREAS, the Pool is sponsored by the Texas Association of Counties (hereinafter called "TAC"), and the Pool was formed by the entry into a charter interlocal agreement by the Texas Association of Counties Workers Compensation Self-Insurance Fund, the Texas Association of Counties Property & Casualty Self-Insurance Fund and the Texas Association of Counties County Government Risk Management Pool; WHEREAS, the Pool was created as an interlocal entity organized under Chapter 791, GOVERNMENT CODE, V.T.C.A, to provide self-insurance for all risks, including workers' compensation, property and casualty and liability coverages as authorized by CHAPTER 2259, GOVERNMENT CODE, V.T.C.A, Chapter 504, LABOR CODE, V.T.C.A., Chapter 119, LOCAL GOVERNMENT CODE, V.T.C.A. and other law; WHEREAS, Member, a local government as defined in Chapter 791 GOVERNMENT CODE and a governmental unit as defined in Chapter 2259 GOVERNMENT CODE, desires to take advantage of the benefits made available through the Pool; WHEREAS, the Member's governing body has approved this agreement; and WHEREAS, the parties recognize that the Pool is a Risk Management Pool authorized by statute and the coverage provided is not considered and does not constitute insurance under any Texas law, including the Texas Insurance Code nor under the common law and is not regulated by the Texas Department of Insurance; NOW, THEREFORE, it is Agreed and Understood among the parties as follows: SECTION 1. PARTICIPATION 1.01. Agreement to Participate Member hereby contracts to become a Member of the Pool. THIS IS NOT A CONTRACT OF INSURANCE and Member does not and cannot hereby elect to create any contract of insurance. The Pool is not a trust and Member does not intend to create a trust. Approved by RMP Board August 29, 2007 1.02. Benefits and Oblij~ations Described in Coverage Documents Member shall have benefits and obligations as more particularly described in the coverage document(s) which may be provided to Member under the terms and conditions of any particular Pool coverage purchased by Member pursuant to this Agreement. A coverage acceptance form, received by the Pool after completion of the underwriting process, or an application for renewal of existing coverage, followed by issuance of a Declarations Page by the Pool for the coverage, shall evidence the acceptance of the terms and conditions of the coverage purchased. Member's rights under any coverage document are subject to the terms and conditions contained in the coverage document. 1.03. Term of Agreement The term of this Agreement shall commence on the 1 st day of January, 2008, and shall continue in full force and effect for a period of one (1) year. This Agreement shall be automatically renewed annually for an additional one (1) year term without the necessity of any action by the parties other than the acceptance of any amendments to the coverage contract and rates. Either party may elect not to renew this Agreement by giving written notice at least thirty (30) days prior to the end of the original term or any renewal term. In the event some coverage is added during the term of this Agreement, the Agreement shall be automatically extended to coincide with the coverage document period provided for the new coverage, except that the term of the Agreement shall continue in accordance with the term(s) of coverage(s) in effect, should any such new coverage be subsequently terminated. 1.04. Termination Without Cause During the Term of the Agreement A. Termination of This Agreement This Agreement may be terminated by either party by giving sixty (60) days prior written notice of intent to terminate the Agreement to the other party. Any notice of intent to terminate must be delivered by deposit in the U. S. Mail, certified, return receipt requested. Termination of this Agreement by either party terminates membership in the Pool and any coverages obtained pursuant to this Agreement. B. Termination of a Coverage Provided Under This Agreement Subject to Section 1.06, any coverage provided under this Agreement may be canceled by either party by giving sixty (60) days written notice of intent to cancel the coverage to the other party, unless the terms of the applicable coverage document conflict with this provision, in which case the provision in the coverage document controls. Approved by RMP Board August 29, 2007 ~9s 7v ti 1.05. Addition or Change of Coverages Pool coverages may be added to the Member's existing coverage(s) provided pursuant to this Agreement, or the provisions of any coverage may be changed, by agreement in writing of the parties. 1.06. Failure to Maintain Coverage The failure to maintain at least one coverage through the Pool will result in the automatic and immediate termination of this Agreement. 1.07. Coverage Documents Any coverage documents used by the Pool shall be approved by the Board of Directors of the Texas Association of Counties Risk Management Pool ("the Board"), or by the Pool Administrator, subject to review by the Board. SECTION 2. POWER, DUTIES AND ORGANIZATION 2.01. Powers of Pool The Pool shall have any power necessary to carry out the purpose of this Agreement which may be conferred by Chapter 791, V.T.C.A., GOVERNMENT CODE, by Chapter 2259, GOVERNMENT CODE, V.T.C.A ; by Chapter 504, LABOR CODE, V.T.C.A, by Chapter 119, V.T.C.A., and by any other law empowering the Pool, and by this Agreement and the Bylaws of the Texas Association of Counties Risk Management Pool ("the Bylaws"). The Pool shall have the power to execute interlocal participation agreements following the form of this Agreement with other Members. The Pool shall have the power to employ a Pool Administrator and independent contractors to assist in carrying out this Agreement. 2.02. Member Compliance By execution of this Agreement, Member agrees to comply with and abide by the Bylaws, applicable Coverage Documents, and the rules and regulations of the Pool, as now in effect and as hereafter amended. 2.03. Incorporation of Bylaws and Bylaws' Amendments The Bylaws are incorporated by reference and made a part of this Agreement for all purposes as if fully set out herein. Any amendment to the Bylaws adopted by the Board shall become binding on Member immediately upon its adoption unless it is in direct conflict with the rights of Member under this Agreement. Any amendment to the Bylaws which alters the rights of a Member under this Agreement shall be effective on the sixtieth (60th) day after written notice of the Approved by RMP Board August 29, 2007 J 09 it *7 7 provision has been served on Member, or otherwise as the parties may agree. If Member objects to any change in the Bylaws affecting such rights, Member may appeal the matter to the Board within ten (10) days of receipt of the notice. The proposed change will not apply to the objecting member until resolution of the matter by the Board. 2.04 Execution of New Agreement The Pool may require Member to execute a new Interlocal Participation Agreement at any time in order for Member to continue participation. Should Member fail to execute and return such an Agreement, the Pool may terminate the Member's participation in the Pool in accordance with the Bylaws. 2.05 Pool Administrator The Texas Association of Counties (hereinafter referred to as "TAC") or its designee, is the administrator of the Pool. 2.06 Provision of Reinsurance The Pool may provide for reinsurance at a level to be determined by Board in its sole discretion. 2.07 No Joint and Several Liability The Member has no joint or several liability other than the maximum annual contribution payable by the Member. The participation of the Member shall at all times be on a nonassessable basis beyond the annual amount of contribution. 2.08 No Guaranty Fund RMP is a self-insurance pool that does not participate in a guaranty fund, so funding for Member's claims under the coverage documents will come solely from the Pool's resources. If the Pool's resources are insufficient to satisfy a claim, the Member will be responsible for the claim. The Pool shall endeavor to maintain at all times stop loss insurance and reserves sufficient to assure that all incurred, fully-developed losses and expenses for the total Pool can be paid from available Pool resources. 2.09 Dividends, Investments and Use of Surplus Any surplus shall be invested or distributed in accordance with the Bylaws Approved by RMP Board August 29, 2007 2. 10 Pool Arrangement for Annual Audit The Pool shall be annually audited by a certified public accounting firm retained by the Pool. SECTION 3. POOL COORDINATOR 3.01. Appointment Member shall by written instrument appoint a Pool Coordinator. The name of the Pool Coordinator and the address for which notices may be given by the Pool shall be set forth in the space provided at the end of this Agreement. The Pool Coordinator shall promptly provide the Pool with any required information. 3.02. Change of Pool Coordinator Member may change its Pool Coordinator and/or the address for notice by giving written notice to Pool of such change prior to the effective date of the change. 3.03. Responsibility of Pool Coordinator Any failure or omission of the Member's Pool Coordinator shall be deemed a failure or omission of Member. The Pool is not required to contact any other individual with respect to Member's business except the named Pool Coordinator unless notice or contact to another individual is required by applicable statute. Any notice given by Pool or its contractor to the Pool Coordinator or such individual as is designated by statute for a particular notice, shall be deemed notice to Member. SECTION 4. ANNUAL CONTRIBUTION 4.01 Submission of Information Member shall timely submit to the Pool documentation necessary for the Pool to use to determine the risk to be covered for the next renewal period and to properly underwrite the risk exposure. The Pool will provide forms identifying the information requested. A Member obtaining Workers' Compensation coverage through the Pool must submit an annual estimated payroll, by payroll classifications of the Member, to the Pool no later than sixty (60) days prior to the first day of the coverage period. At the end of the coverage period, Member must provide the Pool with the actual payroll for the coverage period. Approved by RMP Board August 29, 2007 G] 4.02 Failure to Timely Submit Information If Member fails to timely submit the information required in section 4.01 prior to the renewal date, the Pool may charge a penalty of $100 for each month or portion thereof that the information is not received. Failure to submit the required information within 30 days of the renewal date or failure to pay any penalty provided for in this section may result in termination of Membership under this Agreement or or cancelation of the applicable coverage. 4.03 Determination of Member' Annual Contribution (a) The contribution for coverage provided by the Pool to Member shall be determined annually. In the event that charges are adjusted during a coverage year, the adjustment will become effective on the annual renewal date for that coverage. (b) The contribution for the Member shall be based upon the information provided pursuant to section 4.01 of this Agreement, as well as information obtained from any audit or inspection of operations and property of the Member by the Pool. For liability and property coverages, Members will be charged an annual flat rate contribution that is not subject to audit and adjustment. For workers'compensation coverage, Member will be charged an annual estimated contribution based on the estimated payroll provided pursuant to Section 4.01, but the contribution is subject to year-end audit and adjustment. If the Member's actual annual payroll differs from the estimated payroll, the amount of the annual contribution may be adjusted. If, after this adjustment, the actual contribution is more than the estimated contribution paid by the Member, the Pool shall notify Member of the difference and Member shall immediately remit the additional amount to the Pool. If the actual contribution is less than the estimated contribution paid by the Member, the Pool shall refund the excess amount to the Member. (c) The Pool shall calculate the annual contribution for Member using the appropriate discount and/or surcharge if applicable, as approved by the Board. (d) The Pool will adopt a rate plan for each line of coverage. For workers' compensation coverage, the Pool shall calculate and furnish each Member its individual experience modifier, when earned, in accordance with the provisions of the applicable experience rating plan as approved by the Board. Approved by RMP Board August 29, 2007 4.04 Payment of Contribution Is a Condition of Coverage Member agrees to pay to the Pool the annual contribution amount determined for Member based upon the Pool's calculation. The parties agree that the annual contribution will be paid from current revenues available to Member. The existence of any coverage provided pursuant to this Agreement is expressly conditioned upon, in addition to any other requirements under this Agreement, full and timely payment of charges for any such coverage by Member. Payment shall be paid from Member's current revenues. 4.06 Billing and Payment of Annual Contribution The contribution for coverage provided by the Pool to Member shall be determined annually. In the event that charges are adjusted during a coverage year, the adjustment will become effective on the annual renewal date of the coverage document. The Pool shall bill the annual contribution in advance. Member shall pay the Pool at the address specified in Paragraph 7.07. For liability and property coverages, the annual contribution must be paid in advance in its entirety. For workers' compensation coverage, the annual contribution must be paid in four quarterly payments. For workers' compensation coverage, the Pool will submit quarterly invoices in advance and the Member must pay in advance of the quarter. For all coverages, Member's payment is due upon receipt of invoice and, unless the Pool exercises its right to terminate for non payment as provided in Section 4.07, any payment not received within thirty (30) days of the date of billing shall accrue interest at the rate of 1 % per month, or as allowed pursuant to Texas law. 4.07 Termination for Failure to Pay Notwithstanding any other provision in this Agreement, if any payment or contribution for coverage owed by Member to the Pool is not paid as required by this Agreement, the Pool may cancel such coverage or terminate this Agreement, as the Pool deems appropriate, in accordance with the Bylaws and the applicable coverage document. Member shall remain obligated for such unpaid contribution or charge for the period preceding termination. 4.08 Pool's Right to Audit The Pool has the right, but no obligation, to audit and inspect Member's operations and property at any time upon reasonable notice and during regular business hours, as the Pool deems necessary to protect the interest of the Pool. Approved by RMP Board August 29, 2007 4.09 Charges or Rates in Recognition of High Loss Experience With respect to any Pool coverage, in the event any Member has a higher loss experience than identified in the underwriting standards relevant to that coverage, the Pool may impose on that Member a different or additional rate structure or charge for coverage than those otherwise generally provided to other Members, as a condition of that Member's participation in the relevant coverage. 4.10 Short Rate for Early Withdrawal Should the Member withdraw before the end of the annual contract period, Member will be subject to the short rate earned contribution factors. 4.11 Collection of Outstanding Contributions Should the Member fail to make the required payment hereunder, this Agreement may be canceled by its terms and suit may be brought to collect any outstanding contributions due and payable to the Pool. Alternatively, at the option of the Pool, claims costs normally paid by the Pool, up to the total amount of contribution due, must be paid by Member. If this provision is invoked, notwithstanding any provision to the contrary, the Pool has no liability to pay claims expenses until the Member has paid in claims expenses an amount equal to the amount of the contribution due. It is understood and agreed among the parties that, to the extent allowed by law, venue for any suit brought for the purpose of collecting any contributions due and payable to the Pool shall be in Travis County, Texas, and that this contract was made and all actions under this Agreement are performable in, Austin, Travis County, Texas. The party prevailing in any action brought for the purpose of collecting any outstanding contributions due and payable to the Pool shall be entitled to reasonable attorney's fees, plus court costs. For purposes of this provision, the Pool shall be the prevailing party if it is awarded any relief sought in such preceding. SECTION 5. CLAIMS 5.01 Claims Submitted Member shall submit claims to the Pool as set forth in each applicable Coverage Document or as otherwise required by the Pool or state law. 5.02 Member to Cooperate If the Pool needs assistance from Member or Member's employees regarding a claim, Member will cooperate with the Pool and will provide such assistance. Approved by RMP Board August 29, 2007 09 ~ ~ SECTION 6. SAFETY 6.01 Safety Program The Member agrees to cooperate in instituting any and all reasonable safety regulations that may be recommended for the purpose of eliminating or minimizing hazards that may contribute to losses. In the event that the Member determines any recommendation submitted by the Pool, or a contractor authorized by the Pool to make such recommendations on behalf of the Pool is unreasonable, the Member has a right to appeal to the Board. SECTION 7. MISCELLANEOUS 7.01 Amendment Except as provided in this Agreement and the Bylaws, this Agreement shall not be amended or modified other than in a written agreement signed by both parties. 7.02 Applicable Law This Agreement is entered into and executed in the State of Texas, and all questions pertaining to its validity or construction shall be determined in accordance with laws of the State of Texas. This agreement is made and performable in Travis County, Texas. 7.03 Suit Against the Pool. The Pool retains its governmental immunity except to the extent it is waived by the Legislature. The parties agree that the following adjudication procedures apply to any legal dispute, and that Member's right to sue the Pool is contingent upon compliance with these procedures: 1) prior to filing suit, Member must comply with all of its obligations under this Agreement and any applicable coverage document; 2) prior to filing suit, Member will participate in good faith in mediation in Travis County, Texas; and 3) any suit against the Pool must be brought in Travis County, Texas. 7.04 Acts of Forbearance No act of forbearance on the part of either party to enforce any of the provisions of this Agreement shall be construed as a modification of this Agreement nor shall the failure of any party to exercise any right or privilege herein granted be considered as a waiver of such right or privilege. Approved by RMP Board August 29, 2007 7.05 Effect of Partial Invalidity In case any provision of this Agreement is held illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining provisions of this Agreement. 7.06 Headings and Captions The headings and captions in this Agreement are inserted for the purpose of convenience only and shall not be considered in the construction of any provision. 7.07 Notices and Payments Any notice required to be given to the Pool shall be deemed properly sent if addressed to: Texas Association of Counties Risk Management Pool P. O. Box 2131 Austin, Texas 78768 and deposited in the United States Mail with proper postage. Payments must be sent to either the above address or to the address specified in the Pool's invoice. The Pool may change its address by giving notice to Member. Any notice required to be given or payment required to be made to Member shall be deemed properly sent if addressed to the Member's Pool Coordinator at the address set forth below. Such person and address may be changed by Member if written notice of such change is given to Pool. 7.08 Counterparts This Agreement may be executed in counterparts, each of which, when taken separately, shall be deemed an original. 7.09 Right to Enforce No person or entity not a party to this Agreement may bring suit, as a third- party beneficiary or otherwise, to enforce this Agreement. 7.10 Prior Agreements Superseded Approved by RMP Board August 29, 2007 This Agreement constitutes the sole agreement of the parties hereto and supersedes any prior agreements respecting the services to be provided under this Agreement. EXECUTION IN WITNESS WHEREOF, we hereunto affix our signatures as of the date indicated below. TEXAS ASSOCIATION OF COUNTIES Brazos County RISK MANAGEMENT POOL MEMBER By: Karen Ann Norris, Executive Director Texas Association of Counties Date: September 14, 2007 Governing Body's Designee MEMBER'S POOL COORDINATOR Name: I I zone s Address: Ctsk 3c'~ c% ~ St~i-tom t l ~ L Approved by RMP Board August 29, ]2007 QC Date: (I /(qj 8 Consulting Service Agreement This Independent Consulting Service Agreement (the "Agreement") is entered into this 5th day of June 2008 by and between Adele Carboni Consulting (the "Consultant"), a company located at 20751 La Cote Circle, Spring, Texas 77388-5199, d/b/a Adele Carboni Consulting and Brazos County (the "County"). RECITALS WHEREAS, the County is in need of assistance in the area of Records Management; and WHEREAS, Consultant has agreed to perform consulting work for the County in Records Management services and other related activities for the County; NOW, THEREFORE, the parties hereby agree as follows: 1. Consultant's Services. Consultant shall be available and shall provide to the County professional services in the area of Records Management ("Consulting Services") as needed and requested. At the County's request, direction and expense, Consultant shall provide to County the services listed and detailed below. a. Records Inventory or Records Control Schedule - a listing of all the records in the County office(s) and the legal retention as set forth by the Texas State Library. b. Records Eligible for Destruction - a listing and separation of all the records in the County office(s) that are eligible for destruction per requirements set forth by the Texas State Library. The records eligible for destruction will be physically isolated to expedite the destruction of the records at a later time by the County. It is the County's responsibility to manage the timely destruction of the records identified as eligible for destruction. c. Electronic Storage Authorization - complete the necessary paperwork to secure permission from the Texas State Library for the electronic storage of County records, if necessary. d. Summary Report of Finding - a summary report will be developed that will identify best practices in the industry as they relate to records management in the County office(s). Records Management recommendations will be identified that should be considered by the County office(s) in the future. 2. Consideration. a. RATE. In consideration of the Services to be performed by Consultant under this Agreement the County will pay Consultant the rate $175 per hour for time spent on Consulting Services. Consultant shall submit written, signed reports of the time spent performing Consulting Services, itemizing in reasonable detail the dates on which services were performed, the number of hours spent on such dates and a brief description of the services rendered. The County shall pay Consultant the amounts due in current funds pursuant to submitted reports within 30 days after such reports are received by the County. Payment terms are net 30. b. EXPENSES. Additionally, the County will not be responsible to pay Consultant for business expenses (such as: all travel expenses to and from all work sites; meal expenses; administrative expenses; lodging expenses if work demands overnight stays; and miscellaneous travel-related expenses including parking and tolls) incurred while this Agreement between Consultant and the County exists. The rate is a flat hourly rate that includes all business expenses. 3. Independent Contractor. Nothing contained herein or any document executed in connection herewith, shall be construed to create an employer-employee relationship, partnership or joint venture between the County and Consultant. Consultant is an independent contractor and not an employee of the County. The consideration set forth in Section 2 shall be the sole consideration due Consultant for the services rendered hereunder. It is understood that the County will not withhold any amounts for payment of taxes from the compensation of Consultant hereunder. Consultant will not represent to be or hold itself out as an employee of the County and Consultant acknowledges that it shall not have the right or entitlement in or to any of the pension, retirement or other benefit programs now or hereafter available to the County's regular employees. Any and all sums subject to deductions, if any, required to be withheld and/or paid under any applicable state, federal or municipal laws or union or professional guild regulations shall be Consultant's sole responsibility and Consultant shall indemnify and hold County harmless from any and all damages, claims and expenses arising out of or resulting from any claims asserted by any taxing authority as a result of or in connection with said payments. 4. Confidentiality. In the course of performing consulting services, the parties recognize that Consultant may come in contact or become familiar with information which the County or its subsidiaries or affiliates may consider confidential. Consultant agrees to keep all such information confidential and not to discuss or divulge it to anyone other than appropriate County personnel or their designees. 5. Term. This Agreement shall commence on June 10, 2008, for an initial term of 90 day%nd continue thereafter on a month-to-month basis, unless or until terminated by either party hereto. Either parry may terminate this Agreement upon Thirty (30) days prior written notice. The County may, at its option, renew this Agreement for an additional term of 60 days on the same terms and conditions as set forth herein by giving written notice to Consultant of such intent to renew on or before an agreed upon date. 6. Consultant's Taxpayer I.D. Number. The taxpayer I.D. number of the Consultant is 20-3359049. The Consultant is licensed to perform the agreed upon services enumerated herein and covenants that it maintains all valid licenses, permits and registrations to perform same. 7. Insurance. The Consultant will carry all necessary medical, workers compensation, general liability and professional liability insurance. In the event the Consultant fails to carry such insurance it shall indemnify and hold harmless County, its agents and employees from and against any damages, claims, and expenses arising out of or resulting from work conducted by Consultant and its agents or employees. 8. Competent Work. All work will be done in a competent fashion in accordance with applicable standards of the profession and all services are subject to final approval by a representative of the County prior to payment. 9. Representations and Warranties. The Consultant acknowledges that it has no authority to and will make no representations, warranties, or commitments binding the County without the County's prior consent. 10. Legal Right. Consultant covenants and warrants that he/she has the unlimited legal right to enter into this Agreement and to perform in accordance with its terms without violating the rights of others or any applicable law and that he/she has not and shall not become a party to any other agreement of any kind which conflicts with this Agreement. Consultant shall indemnify and hold harmless the County from any and all damages, claims and expenses arising out of or resulting from any claim that this Agreement violates any such agreements. Breach of this warranty shall operate to terminate this Agreement automatically without notice as specified in Paragraph 5 and to terminate all obligations of the County to pay any amounts which remain unpaid under this Agreement. 11. The Waiver. Failure to invoke any right, condition, or covenant in this Agreement by either party shall not be deemed to imply or constitute a waiver of any rights, condition, or covenant and neither party may rely on such failure. 12. Notice. Any notice or communication permitted or required by this Agreement shall be deemed effective when personally delivered or deposited, postage prepaid, in the first class mail of the United States properly addressed to the appropriate party at the address set forth below: a. Notices as to Consultant: Adele Carboni, Adele Carboni Consulting, 20751 La Cote Circle, Spring, Texas 77388-5199. b. Notices to the County: Mr. Randy Sims, Brazos County Judge, 300 East 26`h Street, Brazos, Texas 77803. 13. Enforceability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the reminder of the Agreement shall remain in full force and effect and shall in no way be impaired. 14. Miscellaneous. a. Entire Agreement and Amendments. This Agreement constitutes the entire agreement of the parties with regard to the subject matter hereof, and replaces and supersedes all other agreements or understandings, whether written or oral. No amendment or extension of this Agreement shall be binding unless in writing and signed by both parties. b. Binding Effect, Assignment. This Agreement shall be binding upon and shall inure to the benefit of Consultant and the Company and to the Company's successors and assigns. Nothing in this Agreement shall be construed to saq ' 97 permit the assignment by Consultant of any of its rights or obligations hereunder. and such assignment Is expressly prohibited without the prior written consent of the County. c. Governing Law, Severability. This Agreement shalt be governed by the laws of the State of Taxes. The Invalidity or unenforceability of any provision of this Agreement shall rot affect the validity or enforceability of any other provision. WWREFORS, the parties have executed this Agreement as of the date written ab ADELE CARBONI COOS/S~LTIIN© BRAZO8 Q N By. ev: Ms. Adete V. Carbon] Mr. dy Sims Title: Principle Title: zos County Judge Address: 20751 La Cote Circle Spring, Tax s 77388,5999 Date: 300 East 2e Street Brazos, Texas 77803 Date; {JtQlok' CONTRACT FOR CONSTRUCTION MANAGER SERVICES BETWEEN OWNER AND CONSTRUCTION MANAGER This CONTRACT FOR CONSTRUCTION MANAGER SERVICES BETWEEN OWNER AND CONSTRUCTION MANAGER (hereinafter referred to as the "Contract") is made and entered into by BRAZOS COUNTY, TEXAS located at 300 East 26th Street, Suite 114, Bryan, Texas 77803 (hereinafter referred to as the "Owner" or "County") and TURNER CONSTRUCTION COMPANY, with local offices located at 4263 Dacoma Street, Houston, Texas 77092 (hereinafter referred to as "Construction Manager" or "Contractor")'. This Contract is executed under seal and shall be effective on the date executed by the last party to execute it The Construction Manager services required by this Contract are to be rendered for the following construction project: (1) Brazos County Jail Expansion (hereinafter collectively referred to as the "Project" or "Work"). Additional Projects may be added to this contract by future Amendments. NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements stated herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Owner and the Construction Manager agree: I. REPRESENTATIONS AND WARRANTIES By executing this Contract, the Construction Manager makes the following express representations and warranties to the Owner: A. Construction Manager understands that time is of the essence, and has agreed to undertake all reasonable efforts to expedite the performance of the "Project," as defined and set out herein. The construction of the 'Project" will commence within fifteen (15) days from the date of the first Trade contract Awarded. B. The Guaranteed Maximum Price (GMP) for the Project shall be as set forth in paragraph X herein, which said Fixed Limit amount represents the not-to-exceed sum of the costs for the Construction of the Project, the "Work," and Other Services of the Construction Manager as prescribed which includes those costs for (1) Construction Costs of the 'Project", including contingencies 1 "Contractor", however, does not include subcontractors where reference is made herein and understood as such. 1 107 g~ except the Owner's Contingency; (2) Construction Manager's Fee; and (3) The General Conditions; and constitutes the Owner's limit of liability to Construction Manager for the completion of the "Project," in accordance with this Agreement. C. Construction Manager will review the Project, as amended and approved by the Owner and prepared by Rosser International and agrees to abide by the final program as designed. D. The Construction Manager assumes full responsibility to the Owner for the improper acts and omissions of the Construction Manager's employees, consultants or others employed or retained by the Construction Manager in connection with the Project. Construction Manager shall keep at the Project Site during the progress of all work performed and to be performed a current list of and references for all personnel. Such list(s) of personnel shall include a competent project executive, project support, project manager/superintendent and all necessary assistants, all of whom shall be satisfactory to Owner. Owner reserves the right to reasonably reject Contractor's construction superintendent and/or project personnel if such person(s) are unsatisfactory to Owner. E. The Construction Manager further understands that the Owner has appointed Steve Byrne as designated Project Manager. The Construction Manager shall coordinate with the appointed Project Manager and communicate with the Purchasing Agent. F. The Construction Manager accepts the relationship of trust and confidence established between it and the Owner by this Contract. It covenants with the Owner to furnish the necessary skill and judgment and to cooperate with the Architect and Architect's subconsultants on the Project furthering products and equipment in the interest of the Owner in the Project. The Construction Manager agrees to furnish to the Owner all services required of it herein. The Construction Manager shall endeavor to promote furtherance of the Project in an expeditious and economical manner consistent with the interests of the Owner in the Project, and the requirements of the Contract Documents. G. The Construction Manager agrees to work under the direction of the Owner with the Architect's and Owner's other consultants from design through final completion of the Project including the final warranty inspection and resolution of all outstanding Project related claims or disputes. Parties acknowledge and agree that the Construction Manager is 2 not providing any Design Services. The Construction Manager shall provide its expertise and services in all matters relating to the Project, and in all matters relating to Project construction. H. The Construction Manager understands that the Owner intends to have the Project fully completed within the time and budget limits prescribed for the Project. Construction Manager agrees to perform its Services hereunder consistent with that intention. Further, it is understood and agreed by Construction Manager that the Project is to be built utilizing various construction contractors/trade contractors. All such construction contracts shall be awarded pursuant to Texas law. 1. Construction Manager shall not be considered an employee of the Owner, but shall occupy the status of Independent Contractor with the Owner. The Construction Manager shall perform its tasks and duties consistent with such status, and will make no claim or demand for any right or privilege applicable to an officer or employee of the Owner, including, but not limited to, worker's compensation, disability benefits, accident or health insurance, unemployment insurance social security or retirement membership. J. All references to "days" mean calendar days. II. GENERAL SERVICES A. It is understood that time is of the essence, and Construction Manager agrees to undertake all reasonably necessary efforts to expedite the performance of services required herein, so that on-site construction of the Project can commence and be substantially completed within the time period set forth herein above. B. Construction Manager shall immediately commence review, value engineering, scheduling and budget related services in connection with the work, and will continue same. Construction Manager shall proceed with sufficient qualified personnel necessary to expedite and fully complete all services required under this Contract in a professional manner consistent with the standards of the industry and the requirements of the Contract Documents. Owner retains the right to reasonably request replacement of any employee assigned by Construction Manager to the Project. However, this replacement may involve a mutually agreed upon salary revision adjustment for any newly assigned employee. 3 19 C. A Schedule of Performance of services hereunder shall be mutually agreed upon between Construction Manager, the Architect, and the Project Manager, which shall enable the Project to proceed continuously to substantial completion. Continued inexcusable failure of Construction Manager to maintain progress in accordance with the agreed Schedule shall be grounds for declaring Construction Manager in default. D. Within thirty (30) days following completion of (B) above, Construction Manager shall develop and provide to Owner a Project Schedule consisting of a coordinated and integrated Project Design Schedule and Project Construction Schedule. Construction Manager shall update the project scheduling, incorporating a detailed schedule for the construction operations of the Project, including activity sequences and durations, allocation of labor and materials, processing of shop drawings and samples, and delivery of products and equipment requiring long lead time procurement. The schedule shall be in CPM form as approved by Owner and shall be updated Monthly. E. Construction Manager shall provide regular monitoring of the project. time schedule as the Project progresses and identify potential variances between schedule and probable completion dates. Further, Construction Manager shall review Project Schedule for construction not started or incomplete and recommend to the Owner and Trade contractors adjustments in the Project Time Schedule to meet the completion date. Construction Manager shall provide summary reports of each monitoring, and document all changes in the Project Time Schedule. F. Architect, under separate contract with the Owner, will produce, assemble and deliver to Construction Manager (through Owner) Working Plans and Specifications. Construction Manager will review the work Plans and Specifications, as received, and shall advise Owner as to their acceptability, suitability, need for revisions and any areas in which the working Plans and Specifications increase the Scope and cost of the Project, or extend the Completion Dates, without assuming any of the responsibilities of the Architect. 4 Ian C~ III. PRECONSTRUCTION PHASE SERVICES The Construction Manager understands that the Architect shall prepare Schematic Designs, Preliminary Designs, and Designs for Construction in accordance with the contract between Owner and Architect. The Construction Manager shall perform the following Preconstruction Phase services in support of the Owner as the Architect executes their responsibilities under their separate contract. The description of these Services is necessarily general rather than specific in detail, and shall not be construed so as to exclude any Services customarily provided by experienced and competent construction management organizations incident to construction projects of the nature and scope of the Project. The following divisions and descriptions of Services are intended only to add clarity and not in contemplation of fixed events whereupon the character of Construction Manager Services will change from one (1) type to another with respect to the Project. The Construction Manager shall: A. Attend regularly scheduled meetings with the Owner and the Architect during the. development of Schematic Designs, Preliminary Designs, and Designs for Construction and advise on site use, foundations , and improvements, selection of materials, building systems and equipment, provide recommendations on construction efficiency and feasibility, availability of materials and labor time requirements for installation and construction, and factors related to cost, including costs of alternative designs, equipment or materials, preliminary projects, and possible economies, without, however, assuming the responsibilities of the Architect. B. Monitor the Construction Budget to maintain the budget within the GMP. Construction Manager shall prepare an estimate based on quantity surveys of the Plans and Specifications for approval by the Owner as the Construction Budget; update and refine this estimate for Owner's approval as the development of the Plans and Specifications proceeds, and advise the Owner if it appears that the Construction Budget will not be met and make recommendations for alternate action. For the purposes of this agreement, the Construction Budget shall consist of all items contained in the GMP. C. Review the Plans and specifications as they are being prepared, on the basis of value engineering, recommending alternative solutions whenever design decisions, plans and details adversely affect construction efficiency and feasibility, budgeted costs or schedules. q 5 D. Recommend the purchase or release and procurement of long lead items to endeavor to assure delivery by the required dates. Construction Manager understands that if such items are to be purchased by the Owner, they shall be purchased in accordance with all the applicable laws of the State of Texas by the Owner's Purchasing Agent. This requirement, which may include the need to competitively bid the items, shall not relieve the Construction Manager of its dutie s in performance of this Contract with regards to the GMP or substantial completion. E. Make recommendations to Owner regarding the division of Construction Work in the Plans and Specifications to facilitate the bidding and awarding of contracts, allowing for phase construction, taking into consideration such factors as time of performance, minimization of work site interference, on time, material and equipment procurement, availability of labor, overlap in trade jurisdictions, provisions of temporary facilities, coordination and sequencing of the Project, and minimization of overall Project costs, and availability of the work site. F. Review Plans and Specifications with Owner to assure: (1) efficiency in the use of materials and methods of construction; (2) coordination among the plan sheets and among the various bid packages; and (3) elimination of areas of conflict and overlapping in the Phase Construction packages to be performed by the various contractors/trade contractors. G. Indicate by written memorandum to the Project Manager, with qualifications where necessary, review and approval as to construction feasibility and for bidding purpose of the Architect's final Plans and Specifications for every division or Phase Construction package of the Project, including public advertising for contract bids. Such review and approval as to construction feasibility, however, shall not be deemed an assumption by Construction Manager of any of the Architect's responsibilities, including errors and omissions in design. The Owner and Construction Manager shall agree on a Contract (Construction Manager's standard form 36P agreement) for construction to be used in the various Trade Packages. The contract between the Owner, Construction Manager and each Trade contractor shall control the legal relationships between the Owner, Architect, the Construction Manager and the contractor/Trade contractors, insofar as actual performance of the construction work and the rights and duties of the parties in connection therewith. Provided, however, that where conflict exists between such documents and this Contract, the provisions of this Contract shall control. 6 ;,;ion a~ H. Assist in the production of each set of final bid documents for the Project by combining the Owner's standard bid documents and forms with the Architect's final Plans and specifications, with such special provisions as may be necessary. 1. Endeavor to develop contractor interest in the Project as Working Plans and Specifications are completed; jointly with the Architect and Owner, establish bid schedules and schedules for pre-bid conferences, including on- site visits, to endeavor to assure the prospective bid ders understand the various site conditions, availability, and coordination and scheduling requirements. IV. BIDDING/NEGOTIATION A. Construction Manager shall continue to develop Trade contractor interest in the Project as working Plans and Specifications are fully completed. Jointly with the Architect and Owner, Manager shall establish bid schedules and conduct pre-bid conferences, including on-site visits, to assist the bidders so they understand the various site conditions, coordination and scheduling requirements, and shall assist the Owner in bidding and negotiation of Trade contracts as follows: Construction Manager will make copies of and provide to Owner's Purchasing Agent and Project Manager all bids by contractors and subcontractors pertaining to the project. Construction Manager will insure that all notices and/or advertising that opening of bids will be done privately and that all bids will incept in Owner's purchasing department. B. During the bid advertising period and prior to bid opening, the Construction Manager shall issue full sets of bidding documents to interested contractors upon receipt of the Contractor's deposit for such documents. The Construction Manager shall return the Contractor's deposit upon return of the bidding documents, provided the contractor returns the bidding documents in accordance with the developed refund criteria. All advertising and document reproduction costs associated with bidding shall be included as a cost in the GMP Amendment. C. Prior to bid opening, the Construction Manager shall: 1. Provide to Owner and Architect a copy of any and all written requests for product substitutions along with a written recommendation as to the acceptability of such substitutions. Construction Manager understands that the Architect is solely 7 ioy ~5 responsible for determining the adequacy of a proposed substitution and the Construction Manager's recommendations are nonbinding on the Architect. 2. Attend any and all pre-bid meetings. 3. Provide to the Owner and Architect all requests for addenda or clarifications which the Construction Manager has received from prospective bidders as necessary to ensure Trade contractors are adequately informed prior to bid opening. The Architect shall issue all necessary addenda or clarifications. D. After bid opening, the Construction Manager shall assist the Owner in assessing the qualifications of the best value bidder to determine if said bidder is qualified to construct the Project. E. If requested, the Construction Manager shall assist the Owner in negotiating a reduction in Scope of Services with the apparent lowest and best qualified bidder as determined by the Owner, in accordance with applicable Texas law. F. Bid forms shall be in conformance with the Brazos County Bid Form. Prices submitted by bidders must be guaranteed for no less than 60 days and include at least three trade references and contact information for job performance references. G. Within 60 days of completion of the project bidding/negotiation, Construction Manager shall prepare and submit to Owner a permanent schedule of values. V. CONSTRUCTION PHASE SERVICES A. Construction Manager shall immediately commence and complete all Construction Phase Services to the extent necessary to achieve completion of the Project within the time and budget limits stated in this Agreement. B. The Construction Manager shall supervise, administer, coordinate, and direct the entire Project using its best skill and attention. It shall be responsible for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the work under the Contract. The Construction Manager assumes full responsibility for the successful completion of the Project within the time limits established in Section 1(A), as 8 a, 109 r :M said time periods may be adjusted pursuant to the terms of this Contract. The Construction Manager shall not be relieved from his obligations to ensure the work is performed in accordance with the Contract documents either by the activities or duties of the Owner or by inspections, tests, or approvals required or performed by persons other than the Construction Manager. Provide the usual and necessary traditional Construction Management Services, including, but not limited to, the following: 1. Maintain a competent, qualified, full-time staff as provided in Exhibit "A" hereto attached to coordinate and provide general direction of the work and progress of the Trade contractors on the Work, so as to complete same in accordance with the Contract Documents. Any substitution of full time staff from Exhibit "A" shall be in accordance with Paragraph I (D) herein and with the express approval of Owner's project manager. 2. Establish procedures for coordination among the Owner, Architect, Trade contractors and Construction Manager pertaining to the Project, and implement such procedures. Establish emergency procedures and provide protection for the Project, equipment, machinery, tools and materials. Construction Manager shall be responsible for the establishment, coordination and implementation of safety programs for the Project. 3. Schedule and conduct progress meetings at which Trade contractors, Owner, Architect, other design consultants (as necessary), and Construction Manager may discuss jointly such matters as procedures, progress, problems and scheduling. 4. Require the Trade contractors to provide to the Construction Manager a detailed Schedule for the operations of Trade contractors on the work, including activity sequences and durations, allocation of labor and materials, processing of shop drawings and samples, and delivery of products requiring long lead time procurement. 5. Review and require the adequacy of the Trade contractors' personnel and equipment and the availability of materials and supplies to meet the Project Time Schedule. Recommend courses of action to the Owner when requirements of a Trade contract are not being met. 9 Implement such courses of action as are required. Recommend and facilitate termination or suspension of Trade contractors, as necessary, for the Owner. On behalf of the Owner, facilitate and enforce any actions required in order to ensure that the Trade contracts are complied with. 6. Develop and monitor a system of cost control. Revise and refine the initially approved Construction budget; incorporate approved changes as they occur, and develop cash flow reports and forecasts as needed. Identify variances between actual and budgeted or estimated costs, and advise Owner and Architect whenever projected cost exceeds budgets or estimates. 7. Develop and implement a system for review and processing of Change Orders. Recommend necessary or desirable changes to the Owner and the Architect, review requests for changes, submit recommendations to the Owner and Architect, and assist in negotiating Change Orders. 8. Develop and implement a procedure for the review and processing of applications by Trade contractors for progress and final payments. 9. Construction Manager shall obtain all building permits on behalf of the Owner, and ensure that all Trade contractors obtain permits for inspection or temporary facilities required to be obtained directly by the various Trade contractors. Obtain approvals related to actual construction from all the authorities having jurisdiction. Costs for permits, if any, shall be reimbursed to Construction Manager by Owner. 10. Review, monitor and provide for quality control programs for the work of Trade contractors to protect the Owner against defects and deficiencies, without assuming any of the Architect's responsibilities, such as, and including, errors and omissions in design. This review and monitoring by the Construction Manager during the Construction Phase shall not relieve the Trade contractors from their responsibilities for construction means, methods, techniques, sequences and procedures, nor for their responsibility to carry out the construction work in accordance with the Contract Documents. Failure of a particular Trade contractor to perform in a satisfactory manner does not relieve the Construction Manager of the requirement to 10 adhere to the GMP nor does it relieve the Construction Manager of any requirement to complete the Project in the time specified. 11. Review the safety programs of each of the Trade contractors and make appropriate recommendations to the Owner and Trade contractor. The performance of such services by the Construction Manager shall not relieve the Trade contractors of their responsibilities for the safety of persons and property, and for compliance with all federal, state and local statutes, rules, regulations, ordinances and orders applicable to the conduct of the Work. Should the Construction Manager become aware of any unsafe operations being used by a Trade contractor the Construction Manager shall take immediate and appropriate action to correct the unsafe condition up to and including stopping the Trade contractor from continuing. The Project Manager shall be immediately notified if such action is taken. The Construction Manager shall not be responsible for the safety program of any Trade contractor. 12. Refer all questions relative to design to the Architect. 13. In collaboration with the Architect, establish and implement procedures for expediting the processing and approval of shop drawings and samples. Construction Manager understands that the Architect is responsible for approving shop drawings and samples. 14. Monitor factory inspection and testing of items fabricated outside the Project area if required by the Project Specifications and included in the GMP. 15. Record and submit to the Owner and the Architect progress reports of the Work in the form of written progress reports, including information on the Trade contractors' work and the percentage of completion, and maintain a detailed daily log of jobsite events, which shall be provided to Owner. 16. Maintain at the Project site, on a current basis, records of all Trade contracts, Plans and Specifications received from the Architect, standards, shop drawings, samples, purchases, materials, equipment, maintenance and operation manuals and instructions, and any other documents and revisions thereto which arise out of the Work. Obtain data from Trade contractors and maintain a current set of Record Drawings, Plans and Specifications received from the Architect. 11 At the completion of the Work, deliver all such records, including a full set of As-Built Drawings, operating manuals and warranties received from the Trade contractors, to the Architect. 17. Secure from all trade contractors and lower tier trade contractors prior to commencement of work the required Certificates of Insurance and/or certified copies of policies evidencing proper insurance coverage, which includes naming Brazos County as an additional insured, to be in force. Construction Manager shall keep a notebook of and provide to Owner copies of all certificates and policies of insurance as contemplated herein. Such notebook of certificates and policies shall be maintained by Construction Manager among the jobsite records at the jobsite. 18. Instruct the Owner's maintenance personnel, as necessary, and coordinate the checkout of utilities, operational systems and equipment. 19. Conduct with the Owner and Architect post-completion inspections during the one-(1) year warranty period to ascertain the existence of defects in material and workmanship and determine the necessity for correction of same. Assign, if possible, the causes of same, the responsible Trade contractor, and recommend reasonable corrective action. Aid the Owner in obtaining such corrective action and in filing insurance and bond claims where coverage is available. Ultimate responsibility for correcting defects in material and workmanship shall rest with the Construction Manager as outlined in the GMP. 20. Conduct with the Owner and Architect a Final Warranty Inspection within thirty (30) days of the end of the one-year (1-year) warranty period. 21. Fully and completely resolve, by litigation or otherwise, all Trade contractor claims arising out of the construction of the Project. VI. TERMINATION OF A TRADE CONTRACTOR A. In the event of termination of a trade contractor, whether for cause or convenience, Construction Manager shall proceed on behalf of the Owner, subject to review and approval by the Owner, in the following manner to secure a replacement Trade contractor: 12 1. In the event of termination for cause, the Construction Manager shall make demand upon, consult and negotiate with the surety of a terminated Trade contractor to obtain a replacement and enter into a Trade contract with the surety-proposed replacement upon the Owner's approval; 2. In the event of termination for convenience or in the event the surety fails or refuses to perform in a default situation, assist the Owner to secure a re-bid of that portion of the Work affected. If such termination was approved by the Owner, then the Project time shall be adjusted equitably. B. In the event that the Construction Manager recommends, in writing, termination of a Trade contractor for failure to perform, and the Surety fails to perform under the terms of the Performance and Payment Bonds, Construction Manager shall indemnify and hold harmless the Owner, from and against claims, damages, losses and expenses, including, but not limited to, attorneys' fees, expert witness costs, and all costs associated with defending a third party claim, arising out of or resulting from the termination of a Trade contractor. VII. OWNER'S REPRESENTATIONS AND RESPONSIBILITIES A. To the best of its ability, Owner shall provide full information regarding its requirements for the Project. Owner represents to the Construction Manager the sufficiency of funds available to Owner to meet its obligations up to the GMP as established above. B. The Owner shall designate herein a Representative who shall be fully acquainted with the Project and with authority to approve the construction budget and payment requisitions, render decisions promptly and furnish information expeditiously. C. The Owner, through the Architect, will furnish one reproducible originals of each Trade contract Package. D. The Construction Manager will award all Trade contracts and will make payment to Trade contractors after Construction Manager has reviewed and recommended approval of payments for them and has received said payment from the Owner. Owner shall pay Construction Manager within thirty (30) days of receipt of approved payment application. 13 .fib t_a1 E. Construction Manager will bid each individual Trade Package in accordance with all applicable laws of the State of Texas. VIII. TRADE CONTRACTS A. All construction work, other than professional and General Conditions services that the Construction Manager customarily performs with its own field staff, shall be performed by Trade contractors. It is understood and agreed that the Cost of Construction line items identified in Construction budget shall be further defined by the Construction Manager at the time the GMP is firmly established. This document shall delineate the Cost of Construction by the estimated amount for each Trade package proposed. This document provides the method by w hich the Construction Team (Owner, Construction Manager and Architect), may continuously determine whether the Project is within the GMP throughout the Project life. B. Subject to Owner's right to disapprove the vendor or contractor, each trade contract shall be awarded at the sole discretion of the Construction Manager pursuant to the applicable Texas law regarding award of public works contracts. If the trade contract awarded for a particular item in the Project is less than the estimated cost of the item in the budget, the difference shall be added to the "Bidding Contingency" line item. However, if the Trade contract awarded for a particular item in the Project exceeds the amount allotted in the Construction Budget, one (1) or. more of the following initial procedures will be undertaken at the election of the Owner after consulting with the Architect and the Construction Manager: 1. Deletion of non-essential bid alternates to try to bring the bid within the amount specified in the Construction Budget but without reducing the overall Scope of the Work unless Owner approves; 2. Negotiations with the apparent lowest and best qualified bidder to determine possible reductions, savings, or substitutions; 3. Rejection of all bids and rebidding; 4. Redesigning to lower the cost to the budgeted amount, with the Owner's consent, and rebidding; or 5. Proceeding with the award using funds contained in the "Bidding Contingency" (i.e. funds in the Contingency and uncommitted 14 budgeted funds or funds saved from prior awards, which were below the established line item amounts). B. If no bids are received on a particular item, the Construction Manager shall re-bid. C. The Owner and Construction Manager shall agree on a Contract for Construction to be used in the various Trade Packages being bid, and each contract shall include a full indemnification of the Owner and Construction Manager as provided in this Contract. The Construction Manager shall prepare Contracts for the Trade contractors and shall provide full supervision and administration for the performance of the Trade contractors. It is the responsibility of the Owner to make payment to the Construction Manager for the work related to the Trade contracts. Payment to be conditioned upon proper review and approval by the Architect and Construction Manager. IX. SUBSTANTIAL, COMPLETION, FINAL COMPLETION, AND DELAY DAMAGES A. The term "Substantial Completion," as used herein, shall mean that point at which, as certified in writing by the Architect, the Project is at a level of completion in strict compliance with the Project Plans and Specifications such that the Owner or its designee can enjoy beneficial use or occupancy and can use or operate it in all respects, for its intended purpose. Partial use or occupancy of the Project shall not result in the Project being deemed substantially complete, and such partial use or occupancy shall not be evidence of Substantial Completion. B. The term "Final Completion," as used herein, shall mean that point at which, as certified in writing by the Architect, it is determined that all deficiencies found have been corrected and that it is appropriate to release retainage and/or make final payment. C. The Construction Manager shall pay the Owner the sum of $2,000.00 for each and every calendar day of unexcused delay in achieving Substantial Completion, not to exceed $500,000.00. Any sums due and payable hereunder by the Construction Manager shall be payable, not as a penalty, but as damages representing an estimate of delay damages likely to be sustained by the Owner, estimated at or before the time of executing this Contract. When the Owner reasonably believes that Substantial Completion will be inexcusably delayed, the Owner shall be entitled, but not required, to withhold from any amounts otherwise due the Construction Manager an 15 09 1~~ amount then believed by the Owner to be adequate to recover liquidated damages applicable to such delays. If and when the Construction Manager overcomes the delay in achieving Substantial Completion, or any part thereof, for which the Owner has withheld payment, the Owner shall promptly release to the Construction Manager those funds withheld, but no longer applicable, as liquidated damages. X. GUARANTEED MAXIMUM PRICE The Guaranteed Maximum Price (GMP) for the Project shall be an amount not to exceed the sum of Forty-Five Million and No/100 dollars ($45,000,000) and shall be inclusive of and comprise the sum of the estimated Cost of the Work, Construction Manager's Fee, Owner's Contingency, Bidding Contingency and any other cost, fee or charge that may be associated or incurred as a result of the Work. GMP is further defined in Exhibit "A" "Allowances" attached hereto, and Exhibit "B" "Design Development Drawings Log," both of which were provided by Turner to Brazos County at the Design Development Review meeting in April 2008. A. Upon acceptance of the GMP, such accepted GMP shall become a part of this Contract. B. The Construction Manager shall include with the Guaranteed Maximum Price proposal a written statement of its basis, which shall include 1. A list of the Drawings and Specifications, including all addenda thereto and the Conditions of the Contract, which were used in preparation of the Guaranteed Maximum Price proposal. 2. A list of allowances and a statement of their basis 3. A list of the clarifications and assumptions made by the Construction Manager in the preparation of the Guaranteed Maximum Price proposal to supplement the information contained in the Drawings and /Specifications 4. The proposed Guaranteed Maximum Price, including a statement of the estimated cost organized by trade categories, allowances, contingency, and other items and the Fee that comprise the Guaranteed Maximum Price 16 J I C) 5. The Date of Substantial completion upon which the proposed Guaranteed Maximum Price is based, and a schedule of the Construction Documents issuance dates upon which the date of Substantial Completion is based. C. The Construction Manager will have an opportunity to review the Plans and Specifications, the Construction Manager shall develop and submit to the Owner, the estimated costs for construction of the Project. If, the Owner and Construction Manager agree that the costs of construction of the Project exceed the GMP, Owner shall make an election between the following two (2) options: 1. In cooperation with the Construction Manager, require the Architect to redraw and redefine the plans and specifications in a manner necessary to bring the aggregate costs for construction under the GMP. 2. Increase the amount of the GMP to the amount established by agreement between the Owner and the Construction Manager. D. Upon agreement between the Owner and Construction Manager on the GMP, the Construction budget shall be established and the GMP shall not be changed except by Change Order to this Agreement. E. Construction Manager also agrees that part of the cost for the "Construction of the Project," shall also include the sum of the actual cost of construction for the various Trade contracts bid, including Change Orders in accordance with this contract. F. The foregoing GMP, unless changed by supplemental Agreement for Change Orders, represents the limit of obligation that Owner may have insofar as the cost for final completion of the Project as described by the dated documents in future Exhibit "C". Should additional amounts be expended over and above the GMP (as may be amended) to achieve completion of the Work, including payment to Construction Manager, in accordance with this Contract, liability for and payment of such additional amounts shall be the responsibility of the Construction Manager. 17 M OS XI. CONSTRUCTION MANAGER'S COMPENSATION A. The Construction Manager accepts and agrees that the Owner's limits of liability for the total project cost shall not exceed the GMP as may be amended and Construction Manager shall be compensated as follows: 1. For Pre-Construction Services the Construction Manager shall be paid a Fee of $36,000 through November 6, 2007 (the bond election) and a Fee of $125,000 for additional pre-construction phase services following November 6, 2007, provided that Brazos County voters approve the issuance of bonds to fund the Project. Should the Project be cancelled prior to the start of construction services, only these two amounts would be due by the Owner to the Construction Manager. 2. For the General Conditions, the Construction Manager shall be paid amounts established by the GMP. If a particular line item has a surplus, that surplus shall be the property of the Construction Manager and may be used to offset overages in other line items. Upon final completion the Owner shall be entitled to 100% of any surplus. 3. Construction Manager fee is established at 3.0% of the Cost of the Guaranteed Maximum Price, as set forth more fully in paragraph X B. Retainage of 5% shall be withheld on the cost of the Trade contracts and Construction Manager fee but not on the General Conditions or direct purchase materials. XII. PROJECT RECORDS All of the Construction Manager's documentary work product under this Agreement shall be the property of the Owner. All records relating in any manner whatsoever to the Project, or any designated portion thereof, which are in the possession of the Construction Manager or the Construction Manager's consultants, shall be made available to the Owner for inspection and copying upon written request of the Owner. Additionally, said records shall be made available, upon request by the Owner, to any state, federal or other regulatory authorities and any such authority may review, inspect and copy such records. Said records include, but are not limited to, all plans, specifications, submittal, correspondence, minutes, memoranda, tape recordings, videos, or other writings or things which document the Project, its design, and its construction. Said records expressly include those documents 18 reflecting the time expended by the Construction Manager and its personnel in performing the obligations of this Contract and the records of expenses incurred by the Construction Manager in its performance under said Contract. The Construction Manager shall maintain and protect these records for no less than five (5) years after final completion of the Project. Thereafter; the Construction Manager shall forward to Owner, upon written request, all plans, specifications, submittal, correspondence, minutes, memoranda, tape recordings, videos, or other writings or things which document the Project, its design, and its construction. Nothing herein shall deny Construction Manager the right to retain duplicates. XIII. CHANGES A. The Owner, without invalidating the Contract, may order Changes in the Work of Individual Trade contractors consisting of additions, deletions or other 'revisions. Such changes, if required by competent authority having jurisdiction over the work, which do not substantially alter the scope of the Work, and are not required due to the. enactment or revision of codes, laws, or regulations subsequent to the preparation of bidding documents, shall be included in calculating the actual cost of construction and shall not result in an increase in the GMP or the Project Time Schedule. All Changes in the Work shall be authorized by a fully executed Supplemental Agreement hereto, or Change Orders in accordance with the Trade contractor's Contract. In this regard, all Trade contracts shall contain a provision entitling Owner to make changes in the Plans and Specifications after performance has commenced, or to decrease or increase the amount of Work to be performed or materials, equipment or supplies to be furnished. B. If the Owner elects to order a Change in the Work of an Individual Trade contractor or Contractor(s), and such change is not being required by competent authority having jurisdiction over the work, the following procedures shall be used: 1. The Construction Manager shall provide an estimate of the cost of the change and the impact the change will have on the Project time schedule; 2. The Construction Manager shall provide an impact assessment of the change on the Construction budget and determine if funding is available within the Owner Contingency line item of the Project; 19 3. The value and/or completion date of the particular Trade contractor(s) Contract(s) shall be amended by Change Order; 4. If the Change Order results in an increase in a Trade contractor(s) contract, and funding is available from within the Owner Contingency line item of the Construction budget and if the Construction Manager agrees, then there shall be no increase in the GMP when the Change Order is executed; 5. If the Change Order results in an increase in a Trade contractor(s) contract, and funding is NOT available from within the Owner Contingency line item of the Construction budget then there shall be an increase in the GMP and the Owner shall provide the required funding when the Change Order is executed; 6. If the Change Order results in a decrease in a Trade contractor(s) contract, the excess funds will be moved to the Owner Contingency line item of the Construction budget; 7. All Change Orders to this Agreement shall be specific and final as to prices and extensions of time. 8. The Architect shall have authority to order minor Changes in the Work and to issue clarifications to the plans and specifications, within the Scope of Work not involving additional Cost of the Work or an extension of the Project Time Schedule and not inconsistent with the Contract Documents. Such Changes may be effected by Field Work Order or other agreed upon tool. Such Changes shall be binding on the Owner, the Trade contractors and the Construction Manager, provided written notice and reasonable opportunity to object have been given. 9. Construction Manager understands that proper review and authorization of Change Orders by the Owner's Governing Body will require an average of twenty-one (21) days. Construction Manager shall fully inform the Trade contractors of this minimum processing requirement and that no claims for delay or additional Cost of the Work shall be recognizable based upon this minimum processing requirement. Allowances, if any, provided for in the Contract Documents shall be authorized only by duly adopted Change Orders, approved in accordance with this Agreement. 20 10. If the Construction Manager wishes to make a claim for Additional Fee or an increase in the General Conditions, necessitating an increase in the GMP, it shall give the Owner written notice thereof prior to the occurrence of the event giving rise to such action. No such notification shall be valid unless so made and no increase shall be valid unless agreed to by Change Order prior to executing the work except in an emergency endangering life or property in which case the Change Order shall be negotiated and processed after the fact. 11. Markups shall be limited to no more than= a. Subcontractors: 10% labor, 10% materials, 10% third party rentals b. Sub/subcontractors: 5% C. Construction Manager 3% profit, 5% overhead XIV. CONTINGENCIES Contingencies are authorized to cover costs that may result from incomplete design, unforeseen and unpredictable conditions, or uncertainties within the defined project scope. The amount of the contingency will depend on the status of design, procurement, and construction; and the complexity and uncertainties of the component parts of the project. Contingency is not to be used to avoid making an accurate assessment of expected cost. A. Owner's Contingency - An Owner contingency shall be established in the amount of ($1,000,000.00) and carried in the budget for this Project. This contingency shall be used at the sole discretion of the Owner. Owner's contingency shall not become part of the cost of work unless specifically authorized by Owner. B. Bidding Contingency As of the date of this contract, the Bidding Contingency is established at $1,157,419.00. As provided in this subsection, but only prior to the Architect's Certificate of Final Completion, the Construction Manager shall be entitled to payment as a Bidding Contingency Cost item all reasonable costs actually incurred prior to such Certificate of Final Completion incident to the performance of Work under this Agreement, which are not otherwise reimbursed or recovered by it, which are not 21 + attributable to Construction Manager's gross negligence or willful misconduct. The Construction Manager will provide a monthly accounting of Bidding Contingency expenditures to keep the Owner fully appraised. C D. Adjustments to Bidding Contingency. Basis of Adjustments. The contingency costs incurred by Construction Manager under the above subsection shall be reimbursable to Construction Manager from the Bidding Contingency component of the GMP Change Order. The amount of the Bidding Contingency shall be increased by the net amount of (i) the aggregate by which Trade contracts entered by Construction Manager are less than line item amounts stated in Construction Manager's construction budget for each particular Trade contract less (ii) the aggregate amount by which Trade contracts entered by Construction Manager exceeds the line item amount stated in Construction Manager's construction budget for each particular Trade contract. All net amounts saved, if any, shall be added to the existing Bidding Contingency amount and shall be available for all purposes permitted under this subsection. Release of Bidding Contingency. 1. Limitations on Adjustments. The Bidding Contingency component of the GMP Change Order shall not be increased for any reason (other than by a Change Order in Owner's sole and absolute discretion) nor shall any claim for any Bidding Contingency Costs in excess of Bidding Contingency or for any increase in Bidding Contingency be made by Construction Manager for any reason, Bidding Contingency is not intended to cover default by Owner or any other circumstances which would otherwise permit an increase in other Components of the Change Order Sum of a Component Change Order or of the Guaranteed Maximum Price under a GMP Change Order or payment of additional compensation to Construction Manager. Without limitation of the foregoing, the Architect shall not have any authority to decide any such claim except as to the authority, if any, provided to the Architect under the separate agreement between the Owner and the Architect. 2. Periodic Review. During the construction phase, the Owner's Representative and the Construction Manager shall review each C~22 1C~ 110 transfer to and from the Bidding Contingency on a weekly basis. The Owner shall determine if the transfer is consistent with the conditions of the Agreement. If the transfer is in compliance with the Agreement, the Owner shall approve the transfer. Additionally, the Construction Manager shall periodically review its accrued and anticipated Bidding Contingency Costs and shall promptly inform Owner of Construction Manager's determination of the extent to which the remaining Bidding Contingency exceeds Construction Manager's reasonably anticipated Bidding Contingency Costs expected to be incurred prior to the issuance of a Final Certificate. Construction Manager shall in good faith negotiate with Owner for the release of any surplus of Bidding Contingency over such anticipated Bidding Contingency Costs so as to permit Owner to enhance the Project. Any such release shall be confirmed by Change Order. Release of Bidding Contingency shall occur in a timely basis as to allow adequate decision making time for the Owner. 3. Confirmation of Balance. The amount of any balance of Bidding Contingency upon the issuance of a Certificate of Final Completion of the entire Project, or upon the earlier termination of this Agreement, shall be confirmed by the written certification of the Owner at the time of the issuance of the Final Certificate. 4. No Relief of Obligations. a. The provisions of this subsection permitting the Construction Manager to charge against the Bidding Contingency for bidding contingency costs described in this subsection do not relieve the Construction Manager of the obligations stated in the Contract Documents, including, without limitation, this Agreement. b. Gross Negligence. In no event shall Construction Manager be entitled to reimbursement of any cost attributable to Construction Manager's gross negligence or willful misconduct. 5. Final Disposition of Bidding Contingency. The amount of any funds remaining in Bidding Contingency upon the issuance of a Certificate of Final Completion of the entire Project, or upon the earlier termination of this Agreement, shall be confirmed by the written certification of the Owner at the time of the issuance of the Final Certificate and any funds remaining in the Bidding Contingency after 23 I/~ „ I I written certification at the time of the issuance of the Final Certificate shall be returned to the Owner. XV. EMERGENCIES In any emergency affecting the safety of persons or property, the Construction Manager shall act, at its discretion, to prevent threatened physical damage, injury or loss. The Construction Manager shall immediately notify the Project Manager when emergency situations arise that either result in the stoppage of work, injury of persons, loss of equipment, or damage to the "Work" itself. It is understood and agreed that one (1) of Construction Manager's primary duties is the anticipation and avoidance of potential claim situations. If the Construction Manager's actions in an emergency situation result in an increase in Project Schedule Time or cost, the Construction Manager may make a claim for additional compensation under the Changes Clause of this contract. In no event, however, shall Construction Manager be entitled to compensation for damages, stoppage, injury or losses resulting from Construction Manager's gross negligence or willful misconduct. XVI. DISCOUNTS, REFUNDS, SALES OF SURPLUS MATERIALS, ETC. A. Discounts, Rebates, Etc. The Construction Manager shall provide the Owner an opportunity to provide funds to take advantage of discounts for prompt payment of materials, supplies, equipment, etc. If the Owner chooses to take advantage of such discounts, the savings shall accrue to the Owner and shall have no impact on the Cost of the Work. If the Owner chooses not to take advantage of such discounts and the Construction Manager decides to do so with the funds of the Construction Manager, the savings shall accrue to the Construction Manager and shall have no impact on the Cost of the Work. Any trade or quantity discounts, rebates, refunds, and/or proceeds from the sale of surplus materials or equipments shall be credited to reduce the Cost of the Work. B. Realized Discounts. All discounts, if realized, for prompt payment shall belong to the Owner, if the Owner has made payment to the Construction Manager to qualify for such discount, and shall be accounted for in the applicable line item. All trade discounts, rebates and refunds, and all returns from sale of surplus materials and equipment, shall likewise accrue to the Cost of the Work, and the Construction Manager and Owner shall make provisions so that they can be secured, the amounts thereof to be accounted for in the applicable line item. 24 V 1 1O~- C. Owner Exemption. The Owner qualifies for exemption from the state and local sales and use taxes, pursuant to the provisions of Section 151.309 of the Texas Limited Sales, Excise and Use Tax Act. Thus, the Construction Manager shall not pay such taxes which would otherwise by payable in connection with the performance of this Contract. D. Exemption Certificate. The Construction Manager, on behalf of the Owner, shall issue an exemption certificate in lieu of the tax on the purchase of all materials, supplies, equipment and other tangible personal property incorporated into the real property being performed pursuant to the Contract with the Owner. Under "reasons said purchaser is claiming this exemption" in the exemption certificate, the Construction Manager must name the project for which the equipment, material and supplies are being purchased, leased or rented. E. Materials And Supplies. Materials and supplies "used in : the performance of a contract" include only those materials actually incorporated into the property being improved and those supplies directly used to incorporate such materials into the property being improved. Overhead supplies and supplies used indirectly or only incidental to the performance of the Contract with the Owner are not included in the exemption. F. Owner Option. With respect to any furniture, equipment, or other capital items of a similar nature for which the Owner reimburses Construction Manager its Actual Costs of acquisition, upon the termination or expiration of this Agreement, and at the election of the Owner, Construction Manager shall either deliver such furniture, equipment and other capital items to the Owner, or shall credit to the Owner the depreciated (normal wear and tear only) value of such items as to which the Owner elects not to obtain. The Construction Manager shall protect all such items during the term of this Agreement against loss or damage other than normal wear and tear. XVII. APPLICATIONS FOR PAYMENT Except as modified by this Section, payments to Construction Manager shall be in accordance with Paragraph XI of this Contract. A. By the first of each month, the Construction Manager shall prepare and furnish to the Owner a monthly statement of the Work performed during the preceding month for which it claims it and the Construction Manager and 25 Jul , ll3 Trade contractors are entitled to be paid. This statement shall be in a form based upon a "Scheduling of Values" for Trade contractors, as defined in the Trade contractors Contract. Such statement may include the reasonable value of materials or equipment not yet incorporated in the Project but delivered, inspected and suitably stored at the site, or, with Owner's consent and subject to compliance with any conditions thereof, at some other location agreed upon. B. Each such statement shall include an amount for the Construction Manager's Fee for the Construction Phase computed on the basis of 100% of the amount earned for the statement period less 5% or retainage, plus the cost of the General Conditions once the first contract is awarded. The Construction Manager shall indicate the amount that each line item of the General Conditions is being billed when requesting payment for the General Conditions. C. The Construction Manager will require of the Trade contractors that 5% of the amounts due under each Trade contract shall be retained by the Owner until thirty (30) days after Final Completion of the Project under this Contract, except that upon mutual agreement by the Architect, Owner and Construction Manager, and with consent of the Construction Manager's and Trade contractors' surety, payment in full shall be made to those Trade contractors whose work is fully completed and accepted during the early stages of the Project, and / or those who have provided a maintenance bond or equivalent security for any remedial or corrective work, acceptable to the Owner and Construction Manager. D. The Project Manager will review the Construction Manager's statement of monies due to the Construction Manager and Trade contractors and shall promptly, after receipt of same, issue a Certificate of Payment to the Owner for such amounts as approved. The Owner shall promptly make payment (but in no event longer than thirty (30) days after certification by Project Manager) in the full amount to the Construction Manager for payment to the Trade contractors. E. Final Payment, constituting the unpaid balance of the Cost of the Work, retainage due Trade contractors, and the balance of the Construction Manager's Fee (including retainage and excluding any delay damages), shall be paid by the Owner to the Construction Manager for payment to the Trade contractors thirty (30) days after Final Completion of the Project and acceptance by Owner. 26 f 0aa -I l T XVIII. INSURANCE A. Without limiting any of the other obligations or liabilities of the Construction Manager during the term of this Contract, the Construction Manager shall purchase and maintain and insure that each trade contractor purchases and maintains the herein stipulated minimum insurance with companies duly approved to do business in the State of Texas and reasonably satisfactory to the Owner. Certificates of each policy shall be delivered to the Owner before any work is started, along with a written endorsement stating that said policy shall not be cancelled, non-renewed or materially changed without thirty (30) days advance written notice being given to the Construction Manager and Owner, except when the policy is being cancelled for nonpayment of a premium, in which case ten (10) days advance written notice is required. Prior to the effective date of cancellation, the Construction Manager must deliver to the Owner a replacement certificate of insurance or proof of reinstatement. Coverage shall be of the following types and not less than the specified amounts: 1. Worker's Compensation as required by Texas law, with the policy endorsed to provide a waiver of subrogation as to the Owner (and Construction Manager if Trade contractor); Employer's liability insurance of not less than $1,000,000 for each accident, $1,000,000 disease for each employee, $1,000,000 disease policy limit; 2. Commercial General Liability insurance, including independent contractor's liability, completed operations and contractual liability, covering, but not limited to, the liability assumed under the indemnification provisions of this Contract, fully insuring Construction Manager's (or Trade contractor's) liability for insurance to or death of Owner's employees and third parties, extended to include personal injury liability coverage with damage to property of third parties, within minimum limits as set forth below: a) General aggregate $ 4,000,000 b) Products- components/ operations aggregate $ 4,000,000 c) Personal and advertising injury $ 1,000,000 d) Each occurrence $1,000,000 e) Fire damage (any one fire) $100,000 P Medical expense (any one person) $ 25,000 27 The policy shall include coverage extended to apply to completed operations and XCU (explosion, collapse and underground) hazards. The completed operations coverage must be maintained for a minimum of one year after final completion and acceptance of the work, with evidence of same filed with Owner. 3. Comprehensive Automobile and Truck Liability Insurance, covering owned, hired and non-owned vehicles, with a combined bodily injury and property damage minimum limit of $1,000,000.00 per occurrence; or separate limits of $500,000.00 for bodily injury (per person); $500,000.00 for bodily injury (per accident) and $100,000.00 for property damage. Such insurance shall include coverage for loading and unloading hazards. B. Construction Manager shall obtain, pay for and maintain umbrella liability insurance during the Contract term, insuring Construction Manager for an amount of not less than $25,000,000 per each occurrence combined limit for bodily injury and property damage that follows from and applies in excess of the primary liability coverage required herein above. The policy shall provide "drop-down" coverage where underlying primary insurance coverage limits are insufficient or exhausted. Owner shall be named as additional insured. C. Builder's Risk Insurance shall be purchased and maintained by the Construction Manager, until the date of Substantial Completion. Builder's Risk Insurance shall cover the work at the site in an amount equal to 100% of the completed value. This insurance shall include the interest of the Owner, the Construction Manager, Trade contractors, and Sub-Trade contractors, and shall insure against the perils of fire, extended coverage, vandalism, and malicious mischief, and shall be extended to provide all "risk" protection, including freeze damage, as available, and for a coverage and with deductibles not to exceed $10,000.00. Flood and earthquake deductible shall not exceed $10,000.00. Deductibles shall be tracked as "Cost of Work" item in the construction budget. D. Each insurance policy to be furnished by Construction Manager or Trade contractor or subcontractor shall include the following conditions by endorsement to the policy= 1. Each policy shall name the Owner as an additional insured as to all applicable coverage; q 28 r _ 2. Each policy shall require that thirty (30) days prior to the cancellation, non-renewable, or any material change in coverage, a notice thereof shall be given to on or by certified mail. If the policy is cancelled for nonpayment of premium, only ten (10) days written notice to Owner is required; 3. The Term "Owner' shall include all authorities, boards, bureaus, commissions, divisions, departments, and offices of the Owner and individual members, employees and agents thereof, in their official capacity and/or acting on behalf of the Owner; 4. The policy phrase "other insurance" shall not apply to the Owner where the Owner is an additional insured on the policy; 5. All provisions of the Contract concerning liability, duty, and standard of care, together with the Indemnification provision, shall be underwritten by contractual liability coverage sufficient to include such obligations within applicable policy limits. E. Insurance furnished by the Construction Manager or Trade contractor or subcontractor shall be in accordance with the following requirements: 1. Any policy submitted shall not be subject to limitations, conditions, or restrictions deemed inconsistent with the intent of the insurance requirements to the fulfilled by the Construction Manager; 2. All policies are to be written through companies duly licensed to transact that class of insurance in the State of Texas; and 3. All liability policies required herein shall be written "occurrence" basis coverage trigger. F The Construction Manager shall carry insurance in the types and amounts herein for the duration of the Contract. The required insurance shall include coverage for Owner's property in the care, custody and control of Contractor prior to construction, during construction and during the warranty period. The insurance shall be evidenced by delivery to the Owner of certificates of insurance executed by the insurer or its authorized agent stating coverages, limits, expiration dates and compliance with all applicable required provisions. The Contractor shall update all expired policies prior to 29 C r '1.17 submission for monthly payment. Failure to update policies shall be reason for withholding of payment until renewal is provided to the Owner. 1. The Construction Manager shall provide and maintain the insurance coverage with the minimum amounts described herein until the end of the warranty period. Failure to maintain insurance coverage, as required, is grounds for Suspension of Work for Cause. The Construction Manager will notify the Owner of the date on which the Builder's Risk insurance policy may be terminated through Substantial Completion notices, acceptance notices and/or other means as deemed appropriate. 2. Coverage shall be written on an occurrence basis by companies authorized and admitted to do business in the State of Texas and rated A- or better by A.M. Best Company or otherwise acceptable to Owner. The policy shall include coverage extended to apply to completed operations and explosion, collapse, and underground hazards. The policy, shall include endorsement CG2503 Amendment-Aggregate Limits of Insurance (Per Project) or its equivalent. 3. Policies must include the following clauses, as applicable= a). This insurance shall not be canceled, materially changed, or non-renewed until after thirty (30) days prior written notice has been given to the Owner. b). It is agreed that the Contractor's insurance shall be deemed primary with respect to any insurance or self insurance carried by the Owner for liability arising out of operations under the Contract with the Owner. c). The Owner, its officials, directors, employees, representatives, and volunteers are added as additional insureds as respects operations and activities of, or on behalf of the named insured performed under contract with the Owner. The additional insured status must cover completed operations as well. The workers' compensation and employers' liability policy will provide a waiver of subrogation in favor of the Owner. d). Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall require each Subcontractor performing work under the Contract, at the 30 Subcontractor's own expense, to maintain during the term of the Contract, the same stipulated minimum insurance including the required provisions and additional policy conditions as shown above. As an alternative, the Contractor may include its Subcontractors as additional insureds on its own coverage as prescribed under these requirements. The Contractor's certificate of insurance shall note in such event that the Subcontractors are included as additional insureds and that Contractor agrees to provide Workers' Compensation for the Subcontractors and their employees. The Contractor shall obtain and monitor the certificates of insurance from each Subcontractor in order to assure compliance with the insurance requirements. The Contractor must retain the certificates of insurance through final payment of each respective trade contractor plus two (2) years and shall have the responsibility of enforcing these insurance requirements among its Subcontractors. The Owner shall be entitled, upon request and without expense, to receive copies of these certificates. G. Construction Manager agrees to the following* 1. Construction Manager hereby waives subrogation rights for loss or damage to the extent same are covered by insurance. Insurers shall have no right of recovery or subrogation against the Owner, it being the intention that the insurance policies shall protect all parties to the Contract and be primary coverage for all losses covered by the policies; 2. Companies issuing the insurance policies and the Construction Manager shall have no recourse against the Owner for payment of any premiums or assessments for any deductibles, as all such premiums and deductibles are the sole responsibility and risk of the Construction Manager, but this expense is to be carried with Construction budget; 3. Approval, disapproval, or failure to act by the Owner regarding any insurance supplied by the Construction Manager shall not relieve the Construction Manager of full responsibility or liability for damages and accidents as set forth in the Contract Documents; and 4. That the costs of insurance are included in the Guaranteed Maximum Price discussed and set forth in this Contract. 1 _Q `i31 l H. Any of such insurance policy required under this Section may be written in combination with any of the others, where legally permitted, but none of the specified limits may be lowered thereby. XIX. OWNER'S RIGHT TO TEMPORALLY SUSPEND WORK A. The Owner shall have the right by written order to temporarily suspend the work, in whole or in part, whenever, in the judgment of the Owner, such temporary suspension is required: 1. In the interest of the Owner generally; 2. Due to government or judicial controls or orders which make performance of this Contract temporarily impossible or illegal; 3. To expedite the completion of a separate contract even though the completion of this particular Contract may be thereby delaying; 4. Because of weather conditions unsuitable for performance of the work; or 5. Because the Construction Manager is proceeding contrary to Contract provisions or has failed to correct conditions considered unsafe for workers. B. The written order of the Owner to the Construction Manager shall state the reason for suspending the work and the anticipated periods for such suspension. Upon receipt of the Owner's written order, the Construction Manager shall suspend the work covered by the order and shall take such means and precautions as may be necessary to properly protect the finished and partially-finished work, the unused materials and uninstalled equipment, including the providing of suitable drainage about the work and erection of temporary structures where necessary. The Construction Manager shall not suspend the work without written direction from the Owner and shall proceed with new work promptly when notified by the Owner to resume operations. C. No additional compensation shall be paid to the Construction Manager for suspension or otherwise to the extent suspension is caused by default of the Construction Manager. To the extent such temporary suspension is not due to the fault of the Construction Manager, it shall be entitled to: 32 1. An equitable extension of working time for the completion of the work, not to exceed the delay caused by such temporary suspension; 2. The actual and necessary cost of properly protecting the finished and partially finished work, unused materials and uninstalled equipment during the period of the ordered suspension such costs, if any, to be determined on a basis set forth in this Contract; and 3. Where the Construction Manager elects to remove equipment from the jobsite and then return it to the site when the work is ordered resumed, the actual and necessary costs of these moves. 4. Any and all General Condition expenses incurred. XX. OWNER'S RIGHT TO TERMINATE; REMEDIES AND DELAYS A. The right to terminate this Agreement, in whole or in part, with or without cause, and for the convenience of the Owner is expressly reserved by Owner. In such event, Notice to Terminate, for all or any portion of the Work, shall be delivered to Construction Manager at least fourteen (14) business days prior to any such termination, who shall then be reimbursed by Owner in accordance with the terms and provisions of this Agreement, for all services completed, but not to exceed actual commitments and expenditures made and Fees carried in connection with the Work to the Date of Termination. No amount shall be due for lost or anticipated profits. All Work- related documents and records shall become the property of Owner, and shall be promptly delivered to Owner in a reasonably organized form without restriction on future use. Should Owner subsequently contract with a new Construction Manager for continuation of services on the Project, which right Owner specifically retains, Construction Manager shall cooperate in providing all necessary and relevant information. B. Nothing contained elsewhere in this Agreement shall require Owner to pay for services not in compliance with the provisions of this Agreement. The Owner may withhold payments to Construction Manager when Construction Manager is in default under this Agreement without waiving any other remedy or right available at law or in equity. C. All disputes arising out of performance of work, or other matters in question between Owner and Construction Manager shall be referred initially 33 ~a~ tzl to the Owner's designated representative for decision, which shall be rendered within fourteen (14) business days of the date of receipt. The authority of the Owner's designated representative contained herein shall be deemed to be an independent covenant of the contract documents= 1. The decision of Owner's designated representative is a final decision. Decisions by the Owner's representative shall be final if not appealed within ten (10) business days of the issuance thereof. 2. In the event that any decision of the Owner's designated representative is inconsistent with the contract documents, or is not rendered within ten (10) business days, Construction Manager may appeal the decision to the County Commissioner's Court. D. Construction Manager understands that time is of the essence, and Construction Manager shall be fully responsible for its delays or for its failure to use its best efforts to accomplish the purposes of this Agreement. However, neither Owner nor Construction Manager, shall be deemed in violation of this Agreement for delays caused by circumstances beyond their respective control. E. If the Construction Manager wishes to make a claim for delay due to circumstances beyond its' contractual control, then the Construction Manager shall give notice to the Owner within seven (7) business days after commencement of the event(s) for which the Construction Manager wishes to make a claim for an extension of time. Such notice shall include the probable duration and a reasonable explanation and justification of the delay. The Construction Manager shall also provide within seven (7) business days stating the conclusion of any such delays. For delays caused by circumstances beyond the Construction Manager's contractual control, the completion date shall be extended for causes which affect the critical path of performance and would logically require an extension of time necessary to complete the work, provided, however, in the event that such causes occur concurrently, the actual time of the delay shall be the time elapsed while such causes exist. The extension of any applicable completion date pursuant to the provisions of this section shall in no way relieve the Construction Manager of an obligation to make every reasonable effort (without incurring additional cost to Construction Manager) to reduce, or if possible, eliminate any delay to the Substantial or Final Completion. 34 F. The work of any portion of the work under this Contract shall be suspended immediately subject-to seven (7) days advanced written notice to the Construction Manager by the Owner declaring the Construction Manager to be in default and a reasonable opportunity to cure by Construction Manager. A copy of such notice shall be served on the Construction Manager's surety. The Contract may be terminated by the Owner for any good cause or causes, among others of which special reference is made to the following: 1. Failure of the Construction Manager to start the work within ten (10) days from date specified and the written work order issued by the Owner to begin work; 2. Substantial evidence that the progress of the work being made by the Construction Manager is insufficient to complete the work within the specified working time; 3. Repeated failure of the Construction Manager to provide sufficient and proper equipment, materials, or construction forces for properly executing the work; 4. Substantial evidence that the Construction Manager has abandoned the work or discontinuance of the performance of the work or any part thereof and failure to resume performance within a reasonable time after notice to do so; 5. Substantial evidence that the Construction Manager has become insolvent, bankrupt, or otherwise financially unable to carry on the work; 6. Deliberate failure on the part of the Construction Manager to observe any requirements of the Contract specifications or to comply with any orders given by the Architect as provided for in the Contract Specifications; 7. Failure of the Construction Manager to promptly make good any defects in materials or workmanship, or any defects of any nature with respect to Construction Manager's work, the correction of which has been directed in writing by the Owner; 35 8. Substantial evidence of collusion for the purpose of illegally procuring a contract or perpetuating fraud on the Owner and the construction work under a contract; and 9. Repeated and flagrant violations of safe working procedures which are not cured within a reasonable period of time. G. After seven (7) days advanced written notice of Construction Manager by Owner and a reasonable opportunity to cure, the work is suspended for any of the causes itemized above, or any other just and reasonable cause or causes, the Construction Manager shall discontinue the work or such part thereof as the Owner shall designate, whereupon the surety may either at its option assume the Contract or that portion which the Owner has ordered the Construction Manager to discontinue and perform the same or, with the written consent of the Owner, sublet the same, provided, however, that the surety shall exercise its option within four (4) weeks after written notice to discontinue the work has been served upon the Construction Manager and upon the surety or its authorized agents. The surety in such event shall. assume the Construction Manager's place in all respects and shall be paid by the Owner for all work performed by it in accordance with the terms of the Contract, but in no event shall such payment exceed the GMP, regardless of the cost to the surety to complete the work. H. All monies remaining due the Construction Manager at the time of his default shall thereupon become due and payable to the surety and the Construction Manager as the work progresses, subject to all terms of the Contract. In case the surety does not, within the herein above specified time, exercise its obligation to assume the Contract or that portion thereof which the Owner has ordered the Construction Manager to discontinue, then the Owner shall have the power to complete, by contract or otherwise as it may determine, the work herein described or any such part thereof as it may deem necessary. I. The Construction Manager shall be entitled to an extension of working time under this Contract only when claim for such extension is submitted to the Owner in writing by the Construction Manager within seven (7) days from and after the time when any alleged causes of delay are reasonably ascertained by the Construction Manager, and then only when such time is approved by the Owner. In adjusting the Contract working time for the completion of the Contract, unforeseeable causes beyond the control and without the fault or negligence of the Construction Manager, if the progress of the Work is delayed at any time by any act or neglect attributable to 36 Owner or Architect / Engineer, or of any employee of any of them, or of a separate contractor employed by any of them, or of any other person or entity for whom any of them may be legally liable, or by changes ordered in the Work, or by the action or inaction of any governmental agency or regulatory body (unless due to the fault or neglect of Construction Manager), or by labor disputes, fire, lightning, explosion, flood, earthquake, hurricane, unusually severe weather, unusual delay in deliveries, unavoidable casualties or other causes beyond Construction Manager's control and fault, or by delay authorized by Owner pending a dispute resolution, or by any other cause which Architect / Engineer or Owner determines may justify delay, then, to the extent the critical path of the Construction Schedule is impacted, the dates established above from Substantial Completion and Final Completion shall be equitably extended, and an equitable adjustment shall be made to the GMP. XXI. TERMINATION BY CONSTRUCTION MANAGER A. In the event the Construction Manager's Work is suspended or stopped in its entirety from no fault of the Construction Manager, the Trade contractors or suppliers for a period twenty (20) days (continuously), the Construction Manager may terminate this . Agreement and shall. be compensated in such event as if termination by the Owner, pursuant to paragraph XIX. Notwithstanding the foregoing, the Construction Manager may not terminate the Agreement under this Article even if the Work is suspended or stopped in its entirety through no fault of the Construction Manager unless and until the Construction Manager has exercised reasonable diligence to cure the cause of such Work suspension or stoppage. B. If Owner fails to pay to Construction Manager any amount due it under this Agreement within thirty (30) days from the date such payment is due, Construction Manager may terminate this Agreement and Construction Manager shall be compensated as provided in Paragraph XIX. In the event of such nonpayment by Owner for a period thirty (30) days, Construction Manager shall give written notice to Owner at least twenty-one (21) business days prior to any such termination. If Owner cures such default within twenty-one (21) business days from the date of notice, Construction Manager shall not have the right to terminate this Agreement pursuant to this provision. This Article shall not be construed to allow the Construction Manager to terminate the Agreement where the Owner has failed to pay the Construction Manager pursuant to the Owner's right to refuse or withhold payment as established in this contract. 37 l XXII. ASSIGNMENT, GOVERNING LAW, VENUE AND NOTICES A. This Contract shall be binding on the parties hereto, their successors, assigns and representatives. Neither Party shall assign any interest in this Agreement without the written consent of the other. B. This Contract shall be governed by and construed solely in decision of the State of Texas. C. This Contract shall be construed according to the laws of Texas; and Brazos County, Texas, shall be the exclusive venue for any litigation involving this Contract; D. All written notices to Owner by Construction Manager shall be addressed to: Ms. Pat Howard Brazos County Purchasing Agent 300 East 26th Street, Suite 117 Bryan, Texas 77803 E. Notice permitted or required by this Contract, shall be in writing and shall be deemed received when received in person or when placed, postage prepaid, in the United States mail, certified return receipt requested, and addressed to the part at the address set forth opposite their signature below. For purposes of any notices that may or could affect the parties' rights and obligations under this Contract, electronic notifications under ESIGN or TEX. BUS. & COMM. CODE ANN. §43.001 et. seq. shall not be accepted as a valid or competent notice or writing. Either party may designate from time to time another and different address for receipt of notice by giving notice of such change of address. F. All written notices from Owner to Construction Manager shall be addressed as follows: Mr. Joe Glowacki, Vice President and General Manager Turner Construction Company 4263 Dacoma Houston, Texas 77092 G. In the performance of this Agreement, Construction Manager shall occupy the status of an Independent Contractor, performing all Work without 38 immediate direction or supervision by Owner. No provision of this Agreement shall be construed as making Construction Manager as agent of Owner. H. Paragraph headings are for convenience only and are not intended to expand or restrict the scope or substance of the provisions of this Contract. 1. Should any term, covenant, condition, sentence, or paragraph of this Contract be found illegal, invalid, or unenforceable for any reason, such illegal, invalid, or unenforceable provision shall be severed from the remainder of this Contract and shall not affect the legality, validity, or enforceability of the remaining terms, covenants, conditions, sentences, or paragraphs of this Contract. J. This Contract represents the entire agreement between the parties hereto, superseding all oral or written previous and contemporaneous agreements between the parties and relating to the matters in this Contract, and except as provided herein cannot be modified without written agreement of the parties to be attached to and made a part of this. Contract. K. All parties represent that they have full capacity and authority to grant all rights and assume all obligations that they have granted and assumed under this Contract. XXIII. COMPLIANCE WITH LAWS, NONDISCRIMINATION AND FEDERAL FUNDS A. The Construction Manager, its officers, consultants, agents, employees and the Trade contractors shall comply with all applicable federal and state laws, and Ordinances of the County of Brazos, Texas, as amended, and with all applicable rules and regulations promulgated by all local, state and national boards, bureaus and agencies. B. As a condition of this Agreement, Construction Manager hereby covenants that it will take all necessary action to ensure that, in connection with any Work under this Contract, it will not discriminate in the treatment or employment of any individual or groups of individuals on the grounds of race, color, religion, national origin, age, sex, or handicap unrelated to job performance, either directly or indirectly or through contractual or other arrangements. In this regard, Construction Manager shall keep, retain and safeguard all records relating to this Agreement or Work performed hereunder for a minimum period of seven (7) years from final Contract completion, full access allowed to authorized representatives of the County 39 upon request of purpose of evaluating compliance with this and other provisions of the Agreement. C. In the event Owner receives funds from any federal agency to be utilized in construction of the Project, Owner shall notify Construction Manager of any terms, requirements, conditions or restrictions attached to the use of said funds. Thereafter, Construction Manager shall assist Owner in notifying all affected bidders and/or contractors/ Trade contractors, and will include, to the extent necessary, all federal requirements as a part of each and every bid package on the federally funded portion of the Project. Construction Manager shall also comply with any applicable requirement and assist Owner with assembling the documents necessary to evidence compliance by each affected bidder or contractor/Trade contractor. XXIV. RESPONSIBILITY FOR WORK; INDEMNIFICATION A. Payment by the Owner shall not constitute nor be deemed a release of the responsibility and liability of Construction Manager, its employees, the Trade contractors, agents or consultants, for the accuracy and competency of their services, nor shall any payment be deemed to be an assumption of such responsibility by the Owner for any defect, error or omission in the Work product prepared by Construction Manager, its employees, the Trade contractors, agents or consultants. B. To the fullest extent permitted by law, Construction Manager shall indemnify, defend and hold harmless the Owner, its officers, agents, employees or consultants,2 from and against all claims, damages, losses, suits and actions, including, but not limited to, court costs and attorney fees, brought for or on account of any injuries, including death, or damages received or sustained by any person, persons or property on account of, arising out of or in connection with the Work performed by the Construction Manager, its agents and employees or the Trade contractors or any suppliers but only to the extent caused by a negligent act or omission of the Construction Manager, its agents and employees or the Trade contractors or any suppliers in the performance of this Contract, any Trade contractor(s) for this Project, or any supplier contract(s) for this Project; or on account of the negligence of the Construction Manager or Trade contractor to provide the necessary barricades, warning lights or signs and the Construction Manager shall be required to pay any judgment, with costs, including attorney fees, which may be obtained against the Owner, its officers, agents or employees 2 However, the parties agree there is no contractual duty herein to indemnify Owner's Architect or the Architect's officers, agents, employees or consultants. 40 growing out of such injury, including death, or damage. The Construction Manager's duty to indemnify shall not be limited by available insurance or by applicable workers' compensation or disability benefit laws. Additionally, the obligation of the Construction Manager under this clause shall not extend to the liability of the Architect, its consultants, agents or employees arising out of (1) the preparation of maps, drawings, opinions, reports, surveys, change orders, designs or specifications, or (2) the giving of or the failure to give directions or instructions by Architect, its consultants, agents or employees, provided such giving or failure to give is the primary cause of the injury or damage. All Trade contracts shall contain a similar indemnification clause which shall include the Owner as an indemnitee. The provisions of this Paragraph are solely for the benefit of the Owner and Construction Manager and not intended to create or grant any rights, Contractual or otherwise, to any other person or entity except as is expressly set forth within this Section. C. It is expressly agreed and understood by Owner and Construction Manager that any and all costs associated with the Owner's efforts in litigation or otherwise resisting claims or liabilities as identified herein above shall be borne, from the inception, by Construction Manager. It is further expressly agreed and understood by Owner and Construction Manager that, in the event of separate representations of the Owner and Construction Manager, Owner shall have the right to select its counsel in any claim or action requiring counsel. The parties hereto agree and understand that the intent of the parties is that the County shall not incur costs or expenses in litigating or resisting claims as identified in herein. XXV. FINANCIAL, INTEREST PROHIBITED, CONFIDENTIALITY Construction Manager covenants and represents that Construction Manager, its officers, employees, agents, affiliates, predecessors, successors, subsidiaries and consultants will have no financial interest, direct or indirect, in product materials or equipment that will be specified for the construction of the Project. XXVI. PERFORMANCE AND PAYMENT BONDS A. With the execution and delivery of the Contract, the Construction Manager shall furnish and file with the Owner in the amounts herein required, the surety bonds specified hereunder. Such surety bonds shall be in accordance with the provisions of the TEXAS GOVERNMENT CODE §2253.0001 41 JQ~ la9 et. seq, Art. 7.19-1 TEXAS INSURANCE CODE and §53.201 et. seq. of the TEXAS PROPERTY CODE and shall be issued by such sureties as are named in the current list of "Companies Holding Certificates of Authority as Acceptable Sureties on the Federal Bonds and as Acceptable Reinsuring Companies" as published in Circular 570 (amended) by the Financial Management Service, Surety Bond Branch, U.S. Department of the Treasury. These bonds shall automatically be increased by the amount of any change order or supplemental agreement which increases or decreases the Contract amount with or without notice to the surety. If the surety on any Bond furnished by the Construction Manager is declared bankrupt or becomes insolvent or its right to do business is terminated or ceases to meet the requirement as set forth above, Construction Manager shall within 20 days thereafter substitute another Bond or surety which complies with the requirement hereto. B. Performance Bond. A good and sufficient bond in an amount not less than the contract sum, 100% of the GMP guaranteeing and as security for the full and faithful execution of the work and performance of the Contract in accordance with the plans, specifications, and Contract documents, including any extensions thereof, for the protection of the Owner. This bond shall also provide for the repair and/or replacement of all defects due to faulty materials and workmanship that appear or become known within a period of one year from the date of completion and acceptance of the improvement by the Owner or such lesser or greater period as may be designated in the Contract Documents or provided by Texas law relating to and/or governing any applicable warranties. C. Payment Bond. A good and sufficient bond in an amount not less than 100% of the approximate total amount of the Contract, as evidenced by the proposed tabulation guaranteeing and as security for the full and proper protection of all claimants supplying labor and materials in the prosecution of the work provided for in said Contract and for use of such claimant. This bond shall remain in effect at least until one year after the date when final payment becomes due for all materials and labor supplied in the prosecution of the work provided in said Contract. D. Sureties. No surety shall be accepted by the Owner who is now in default or delinquent on any bonds or who has interest in any litigation against the Owner. All bonds shall be made and shall be executed by not less than one corporate surety authorized to do business in the State of Texas and acceptable to the Owner. All sureties shall be listed in the most current federal register treasury list. Each bond shall be executed by the Construction Manager and surety. 42 ioy X30 E. Additional or Substitute Bonds. If at any time the Owner is or becomes reasonably dissatisfied with any surety of a performance or payment bond, the Construction Manager shall, within twenty (20) days after notice from the Owner to do so, substitute an acceptable bond or bonds, or provide any additional bond, and such form and sum and signed by such other surety or sureties as may be reasonably satisfactory to the Owner. The premiums on such bond shall be paid by the Construction Manager and the premiums for all bonds shall be included in the GMP as a cost of the Work. F. The CONTRACTOR shall also require all subcontractors performing work on the project or who may enter upon the work site to maintain the same insurance requirements listed above. G. If CONTRACTOR fails to maintain the aforementioned insurance, or fails to secure and maintain the required endorsements, Owner may obtain such insurance, and deduct and retain the amount of the premiums for such insurance from any sums due under the agreement; however, procuring of said insurance by Owner is an alternative to other remedies the Owner may have, and is not the exclusive remedy for failure of Contractor to maintain said insurance or secure such endorsement. Owner shall also have the right to order Contractor to stop work and/or withhold any payment(s) that become due to Contractor until Contractor complies with the requirements hereof. H. It is agreed that CONTRACTOR's insurance shall be deemed primary with respect to any insurance carried for liability arising out of operations under this Agreement. XXVII. HAZARDOUS MATERIALS It is understood and agreed that the general conditions do not contemplate the handling of, responsibility for the discovery of, or the performance of services by the Construction Manager related to the abatement, replacement or removal of products or processes involving asbestos or hazardous waste in any of its forms as defined by the EPA. If such products or wastes are present, the Owner shall retain and pay for specialists required to perform services to specify and supervise abatement, replacement or removal procedures. The Construction Manager shall carry on the work and maintenance progress where not hampered by the abatement process as agreed by the Owner while the specialists are performing such abatement, replacement, or removal procedures, unless otherwise prohibited by law. The Construction Manager has the obligation to require all Trade 43 contractors to agree to comply with all applicable laws relating to hazardous materials or known hazardous waste. Subject to this obligation, the Owner agrees to be responsible to the Construction Manager for all claims, lawsuits, expenses or damages arising from or related to the exposure, handling, use, treatment, purchase, sale, storage or disposal of asbestos, asbestos products or any hazardous waste, in any of its various forms as defined by the EPA provided that such waste is not generated by the Construction Manager or Trade contractor(s) during the construction of the Project. This responsibility to the Construction Manager shall survive the completion of the Project, the work administered under these general conditions and the general conditions themselves unless claims or lawsuits are caused solely by the negligent act of the Construction Manager or Trade contractor(s) in providing services. Construction Manager agrees not to knowingly recommend any products containing asbestos for inclusion in this Project. If Construction Manager shall be delayed by the supervision, abatement, removal of any hazardous wastes or materials, Owner agrees the time of the completion of the work shall be extended for a period equal to the reasonably estimated period of delay as may be determined and agreed to between the Construction Manager and the Owner. XXVIII. ARCHITECT The Parties hereto understand and acknowledge the Architect's responsibilities for the Project are more fully set forth in separate contracts between the Owner and the Architect. XXIX. MEDIATION The parties shall mediate any claim or dispute of whatever nature between the parties arising out of or relating to this Agreement, including the construction, interpretation performance, breach, termination, enforceability, or validity of the Agreement, whether such claim existed prior to or arises on or after the date of this Agreement. The mediation shall take place in Brazos County, Texas and the mediation shall be conducted in accordance with the construction mediation rules of the American Arbitration Association. The parties further agree that in lieu of the American Arbitration Association, designation is expressly made in favor of the National Mediation Academy, 6688 N. Central Expressway, Suite 600, Dallas, Texas 75206 (214) 361-4998, Fax (214) 361-2343, (800) 685-0999 as administrator of any mediation between the parties. The owner, the contractor, and all subcontractors, sub- subcontractors, material suppliers, engineers, architects, designers, construction lenders, bonding companies, 44 4_i 0 q 3~ and all other parties concerned with and involved in the performance of the contract are bound, each to the other, by this mediation clause, provided the party signed this contract, or signs a contract that incorporates this contract by reference, or signs any other agreement to be bound by this mediation clause. The cost(s) of mediation shall be divided equally by all parties. IN WITNESS WHEREOF, Owner has caused this Agreement to be signed in its corporate name by the duly authorized to execute the same in its behalf by the Owner, and Construction Manager has signed by and through its duly authorized representative, thereby binding the parties hereto, their successors, assigns and representatives for the faithful and full performance of the terms and provisions hereto. EXECUTED this day of , 2008 TURNER CONSTRUCTION COMPANY Gtt7~hoaN- ~ • By: Matthew A. Papen us Vice President and Authorized Agent BRAZOS COUNTY By: Ra y Sims irrazos County Judge Attest: By: Karen McQueen Brazos County Clerk 45 10 133. D=Lr: •i.7 = M 71; sow o ° M4T/O/1 New Ideas, New Solutions. RENTOR: DOCUMAT/ON OF EAST TEXAS, INC. 4700 Elmo Weedon Rd., Suite 108 College Station, TX 77840 T. 979.731.8500 F. 979.731.8586 DOCL IANAGE RENTAL AGREEMENT MUNICIPALITIES AADDENDUM ADDENDUM to the RENTAL AGREEMENT originally signed by Customer on with a Rental Payment of $ 35 3. 00 1. CUSTOMER COVENANTS. Customer covenants and warrants: A. It has, in accordance with the requirements of law, fully budgeted and appropriated sufficient funds for the current budget year to make the payments scheduled to come due and to meet its other obligations under the Agreement and such funds have not been expended for other purposes; and B. There is no action, suit, proceeding or investigation pending, or threatened in any court or other tribunal or competent jurisdiction, state or federal or before any public board or body, which in any way would (a) restrain or enjoin the delivery of the Agreement or the ability of the Customer to make its Base Payments (as set out above); (b) contest or affect the authority for the execution or delivery of, or the validity of, the Agreement; or (c) contest the existence and powers of the Customer; nor is there any basis for any such action, suit, proceeding or investigation; and C. The equipment will be operated and controlled by the Customer and will be used for essential government purposes and will be essential for the term of the Agreement. D. Customer has not previously terminated a agreement for non-appropriation, except as specifically described in a letter appended hereto. 2. NON APPROPRIATION. In the event Customer is in default under the Agreement because: A. Funds are not appropriated for a fiscal period subsequent to the one in which the Agreement was entered into which are sufficient to satisfy all of Customer's obligations under the Agreement during said fiscal period. B. Such non-appropriation did not result from any act or failure to act of customer. C. Customer has exhausted all funds legally available for all payment due under the Agreement. D. There is no other legal procedure by which payment can be made to Rentor. Then, provided that Customer has given Rentor written notice of the occurrence of paragraph 1. above thirty (30) days prior to such occurrence; Rentor has received a written opinion from Customer's counsel verifying the same within ten (10) days thereafter; and the Customer does not directly or indirectly purchase, rent or in any way acquire any services or equipment supplied or provided for hereunder; upon receipt of the equipment delivered to a location designated by Rentor, at Customer's expense, Rentor's remedies for such default shall be to terminate the Agreement at the end of the fiscal period during which notice is given; retain the advance payments, if any; and/or sell, dispose of, hold, use or rent the equipment as Rentor in its sole discretion may desire, without any duty to account to Customer. 3. SIGNATURES. Each signor (two if monthly payment exceeds $1,200.00) warrants that he/she is fully conversant with the governing relevant legal and regulatory provisions and has full power and authorization to bind Customer. Signor(s) for Customer further warrant(s) its governing body has taken the necessary steps; including any legal bid requirements, under applicable law to arrange for acquisition of the Equipment; the approval and execution has been in accordance with all applicable open meeting laws; and that a resolution of the governing body of Customer authorizing execution of the Agreement has been duly adopted and remains in full force and effect. Entity Name: - I lr lEntity Name: By (Please Print)/~ - By (Please Print): Signature: Signature: - - - Title: i - - - - a -n t^.,: •P . I Date: Title.. _ RENTOR: DOCUMATION, Inc. 4700 Elmo Weedon Rd. Ste #102 DOCLr ollege Station, TX 77845 T. 979.731.8500 500 F. 979.731.8586 Business Technology Integration. DOCUMANAGE RENTAL AGREEMENT CLIENT Bill To Full Client Legal Name County of Brazos INFO RMATION Contact Person Ka Tracy Installation Site Key operator Street Address 300 E. 26th Street Title Road 8~ Bridge Office Mana Title Box/Suite/Routing Suite 314 Auditor's Office Telephone # 979-822-2127 Telephone # City Bryan I State TX 1 Zip Code 77802 Facsimile # 979-361-4347 Facsimile # Installation Address (ii different from above) 2617 W. Hwy 21, Bryan, Tx. 77802 RENTAL EQUIP Quantity Make Item email MENT INFORMATION Description (or Accessories) email 1 Ricoh 413344 MP C3500SPF 2 3 4 5 6 .1- . rte" . - I n.uv r rrrrn•~•~ rRC1Y i HL i Euxivl tMonins) ~ 113t:UUK1 I Y ULIJUSIT , I 1 1 RENTAL PAYMENT FREQUENCY • j IMAGE METER READ FREQUENCY BLACK IMAGE ALLOWANCE t t 1 EXCESS IMAGES OVER ALLOWANCE (each) , I t COLOR IMAGE ALLOWANCE 1 EXCESS IMAGES OVER ALLOWANCE (each) t 1 SCAN IMAGE ALLOWANCE t EXCESS IMAGES OVER ALLOWANCE (each) 1 Consumable Supplies Included Unless Otherwise Indicated, Excludes Throughput Stocks BLACK Supplies Included ❑ No COLOR Su lies Included ❑ No AGREEMENT NUMBER All amounts exclusive of applicable taxes, SALES REPRESENTATIVE THIS AGREEMENT CANNOT BE TERMINATED EARLY. Joe Carver Terms and Conditions on reverse side. Other Agreed Upon Addendum(s) Include: A CLIENT ACC B C EPT ANCE RENTOR ACCEPTANCE :ompanyName: County of Brazos Rant., DOCUMATION, Inc. 9y (Please Print): By: signature: Signature: Itle: t° Date: /~DO ntle: Ci0 orate Officer wte: GUAR ANTY he undersigned unconditionally jointly, severally, and personally guarantee prompt payment of all the Client's obligations. The Rentor is not required to proceed against the Client or enforce other emedles before proceeding against me/us. Uwe waive n By (Please Print): By (Please Print): ignature: Date: Signature: Dots: DELIVERY . ACCEPTANCE quipment has been received, put in use, is In good working order and Is satisfactory. All conditions and terms of this agreement have been reviewed, acknowledged and are now irrevocable and ncondidonal. y (Please Print): fv Tide: - ignature: Date: Q 4-Z / l3~ DOCUMANAGE RENTAL MASTER AGREEMENT TERMS and CONDITIONS 1. AGREEMENT. You, the 'CIIenY, agree to rent from us, the 'Renton, the personal property described under "RENTAL EQUIPMENT INFORMATION," and as modified by Addendums to this Master Agreement from time to time signed by you and us (such property and any upgrades, replacements, repairs and additions referred to as "Equipment"), for business purposes only. You agree to all terms and conditions contained in this Agreement and any Addendum, which together are a complete statement of our Agreement regarding the listed Equipment ("Agreement") and supersedes any purchase order, agreement, or other documents. You authorize us to insert or correct information on this Rental Agreement including your proper legal name, serial numbers, and any other numbers describing the equipment This Agreement may be modified only by written agreement and rat by course of performance. This Agreement becomes valid upon execution by us and will begin on the rent commencement date and will continue from the first day of the following month for the number of consecutive months shown. The term will be extended automatically for successive twelve (12) month terms unless you send us written notice you do not want it renewed at least ninety (90) days before the end of any term. If any provision of this Agreement is declared unenforceable in any jurisdiction, the other provisions herein shall remain in full force and effect in that jurisdiction and all others. 2. RENT. Rent will be payable in installments, each in the amount of the basic rental payment shown plus army applicable sales tax, use tax, plus, if applicable, 1/12th of the amount estimated by us to be personal property tax on the Equipment for each year of this Agreement You will pay a charge for each image in excess of the image allowance, as indicated on the first page of the Agreement. You will pay the security deposit, if applicable, on the date you sign this Agreement. Subsequent installments will be payable on the first day of each rental payment period shown, beginning after the first rental payment period. Rent payable for the month of rent commencement shall be prorated from the monthly rental amount set forth above. We will have the right to apply all sums, received from you, to any amounts due and owed to us, under the terms of this Agreement. In the event this Agreement is not fully completed, the security deposit will be retained by us to compensate for our documentation, processing and other expenses. If for any reason, your check is returned for nonpayment, a $25.00 returned check charge will be assessed. 3. MAINTENANCE AND SUPPLIES. Maintenance is included for the listed Equipment Maintenance includes, and is limited to, parts repair or replacement and associated labor, for service required as a result of normal wear and tear. Supplies, excluding throughput stocks and staples, are included unless otherwise indicated. Work associated with Client's Information Technologies not listed on this Agreement, including but rat limited to Software, Computer, Data, Files, and Network is rat covered by Rentor, and is billable to Client. Rentor is not responsible for any damage to Client's Information Technologies. Client is responsible for all software Agreements and Rentor is not a party to arty such licensing. 4. OWNERSHIP OF EQUIPMENT. We, the Rentor, are the Owner of the Equipment and have sole title to the Equipment (excluding software). You agree to keep the Equipment free and clear of all liens and claims. 5. TAXES AND FEES. You agree to pay when due all. taxes (including personal property tax, fines and penalties) relating to this Agreement or the Equipment. If we pay any of the above for you, you agree to reimburse us and to pay us a processing fee for each payment we make on your behalf. 6. EXCESS IMAGES AND COST ADJUSTMENTS. You will submit true and accurate Equipment meter readings to Rentor for all Equipment by the end of the second work day of each billing period in any reasonable manner requested by Rentor. If Client fails to submit meter readings, Rentor may estimate meters and Invoice. At the end of the first year of this Agreement, and once each successive twelve month period thereafter, we may Increase the bass rental payment and the excess images charge by an amount not to exceed ten percent (10%) of the existing charge. 7. UPGRADE/DOWNGRADE PROVISION. We may review your Image volume and propose options for upgrading or downgrading to accommodate your needs. 6. SECURITY DEPOSIT. The security deposit is ran interest bearing and is to secure your performance under this Agreement Any security deposit made may be applied by us to satisfy arty amount owed by you, in which event you will promptly restore the security deposit to its full amount as set forth above. If all conditions herein are fully complied with and provided you have not ever been in default of this Agreement per paragraph 15, the security deposit will be refunded to you after the return of the Equipment in accordance with paragraph 10. 9. WARRANTY DISCLAIMER. WE MAKE NO WARRANTY EXPRESS OR IMPLIED, INCLUDING THAT THE EQUIPMENT IS FIT FOR A PARTICULAR PURPOSE OR THAT THE EQUIPMENT IS MERCHANTABLE. YOU AGREE YOU HAVE SELECTED THE SUPPLIER AND EACH ITEM OF EQUIPMENT BASED UPON YOUR OWN JUDGMENT AND DISCLAIM ANY RELIANCE UPON ANY STATEMENTS OR REPRESENTATIONS MADE BY US. 10. LOCATION OF EQUIPMENT. You will keep and use the Equipment only at the installation address shown and you agree not to move it unless we agree. At the end of the Agreement's term, you will return the Equipment to a location we specify at your expense, in retail resaleable condition, good and full working order, and in complete repair. 12. COLLATERAL PROTECTION AND INSURANCE. You agree to keep the Equipment fully insured against loss with us as loss payee in an amount not less than replacement cost until this Agreement is terminated. You also agree to obtain a general public liability insurance policy from anyone who is acceptable to us and to include us as an Insured on the policy. You agree to provide us certificates or other evidence of insurance acceptable to us, before this Agreement begins or, we will enroll you in our property damage coverage program and bill you a property damage surcharge as a result of our Increased administrative costs and credit risk. As long as you are current at the time of the loss (excluding losses resulting from acts of God), the replacement value proceeds received for the Equipment will be applied against any loss or damage as per paragraph 11. You must be current to benefit from the property damage surcharge program. NOTHING IN THIS PARAGRAPH WILL RELIEVE YOU OF YOUR RESPONSIBILITY FOR LIABILITY INSURANCE COVERAGE ON THIS EQUIPMENT. 13. INDEMNITY. We are not responsible for any loss or injuries caused by the Installation or use of the Equipment You agree to hold us harmless and reimburse us for loss and to defend us against arty claim for losses or injury caused by the Equipment This indemnity obligation will continue after the termination of this Agreement if the loss occurred during the term of the Agreement 14. ASSIGNMENT. YOU HAVE NO RIGHT TO SELL, TRANSFER, ASSIGN OR SUBLEASE THE EQUIPMENT OR THIS AGREEMENT. We may sell, assign, or transfer this Agreement, in whole or in part, without notice to a New Rentor. You agree that if we sell, assign, or transfer this Agreement , either in whole or in part, the New Rentor will have the same rights and benefits that we have now and will not have to perform any of our obligations. You agree that the rights of the New Rentor will not be subject to any claims, defenses, or set offs that you may have against us. 15. DEFAULT AND REMEDIES. If you do not pay any rental payment or other sum due to us or other party when due or if you break any of your promises in the Agreement or any other Agreement with us, you will be in default If any part of a payment is late, you agree to pay a late charge of 15% of the payment which is late or if less, the maximum charge allowed by law. If you are ever in default, we may retain your security deposit and at our option, we can terminate or cancel this Agreement and require that you pay: (1) the unpaid balance of this Agreement (discounted at 6%); (2) twenty-five percent (25%) of the manufacturer's original list price which represents our anticipated residual value in the Equipment; (3) and return the Equipment to us to a location designated by us. We may recover interest on any unpaid balance at the rate of eight percent (8%) per annum. We may also use any of the remedies available to us under Article 2A of the Uniform Commercial Code (UCC) as enacted in the State of the Rentor or its New Rentor or any other law. If we refer this Agreement to an attorney for collection, you agree to pay our reasonable attorney's fees and actual court costs. If we have to take possession of the Equipment, you agree to pay the cost of repossession. The net proceeds of the sale of any repossessed Equipment will be credited against what you owe us under this Agreement YOU AGREE THAT WE WILL NOT BE RESPONSIBLE TO PAY YOU ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES FOR ANY DEFAULT BY US UNDER THIS AGREEMENT. You agree that any delay or failure to enforce our rights under this Agreement does not prevent us from enforcing any rights at a later time. It is further agreed that your rights and remedies are governed exclusively by this Agreement and you waive Client or Customer's rights under Article 2A (508-522) of the UCC. We reserve the right to remove any parts placed into the Equipment during the preceding six months or any and all supplies previously provided by us. You agree this may render the Equipment Inactive. Disabling Equipment as described herein does not reduce your charges while the machine is disabled. 16. UCC FILINGS. You grant us a security interest In the Equipment if this Agreement is deemed a secured transaction and you authorize us to record a UCC-1 financing statement or similar instrument, and appoint us your attorney-in- fad to execute and deliver such instrument, in order to show our Interest in the Equipment 17. LAW. This Agreement shall be deemed fully executed and performed in the state of Rentor or its New Rentor's principal place of business and shall be governed by and construed in accordance with its laws. If the Rentor or its Assignee shall bring any judicial proceeding in relation to any matter arising under the Agreement, the Client irrevocably agrees that any such matter may be adjudged or determined in any court or courts in the state of the Rentor or its New Rentor's principal place of business, or In any court or courts in Client's state of residence, or in any other court having jurisdiction over the Client or assets of the Client, all at the sole election of the Rentor. The Client hereby irrevocably submits generally and unconditionally to the jurisdiction of any such court so elected by Rentor in relation to such matters. You waive trial by jury in any action between us. 18. TRANSITION BILLING. This Agreement is binding upon you on the date you sign the Agreement. The tens is effective on the date you sign the Delivery and Acceptance (Effective Date). The term of this Agreement begins on date designated by us after receipt of all required documentation and acceptance by us (Commencement Date) and continues for the number of months designated as "Term." You agree to pay an Interim monthly payment in the amount of 1/30 of the monthly payment, for each day from and including the Effective Date until the day preceding the Commencement Date. A 19879 E 19879 N 19879 S19879 06101/05 11. LOSS OR DAMAGE. You are responsible for the risk of loss or for any destruction of or damage to the Equipment No such loss or damage relieves you from the payment obligations under this Agreement. You agree to promptly notify us in writing of ary loss or damage, and you will then pay to us the present value of the total of all unpaid rental payments for the full rental tens plus the estimated fair market value of the Equipment at the end of the originally scheduled term, all discounted at six percent (6%) per year. Any proceeds of insurance will be paid to us and credited, at our option, against any loss or damage. J 3~0