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HomeMy WebLinkAbout2008-08-19-6:00PM-REGULARZ1 pT f: OF T Y O F $gP ii:i 9 A"S 1 S F7> 4" U 0 BRAZOS COUNTY ``f/~~ BRYAN, TEXAS . NOTICE OF T►TF.ETIIVG AND AGENDA BRAZOS COUNTY COIV7NIISSIONERS COURT THE COMMISSIONERS COURT OF BRA7.OS COUNTY WILL MEET IN REGULAR SESSION ON I9 AUGUST 2008 AT 6:00 P_M_ IN ASSEMBLY ROOM 3 OF THE B7iA7.OS CENTER, 3232 BRIARCREST DRIVE, BRYAN, TEXAS. 1 . invocation and Pledge o£ Allegiance - Commissioner Peters. 2_ Call for citizen's input and/or concerns- 3. Presentation o£ the Proposed Budget to Fiscal Year 09_ Consider and take action on agenda items 4 - 27: 4_ Budget Amendment 07/08-42.1 thr 07/08-42-15- 5- Personnel Change of Status- 6_ Payment of Claims_ 7_ Resolution 08-013 initiating eminent domain proceeding regarding 100 South Texas Avenue, 0.264 acres being Lots 9 and 10, Bloclc 25, City of Bryan, Brazos County, Texas (previously tczbZec7). 8_ Establish the date and time for a Public Hearing on the Proposed Budget for Fiscal Year 2009- 9- Proposal to Increase Tax Revenues. 10_ Establish the dates and times for two Public Hearings for a Tax Increase- Off- of the County Judge - 200 South Texas Ave SustG 332 ryan, Texas 77803 Fax: (979) 361-4503 Commissioners Court Agenda 19 August 2008 Page 2 11. Reappointment of Dr. Roland Haden to the Research Valley Partnership Board of Directors. Term of appointment is 1 August 2008 through 31 July 2011. 12. Cancellation of the regular session of Commissioners Court scheduled for 26 August 2008. 13. Contract with Greenway Constructors, Inc. for the construction of the Minimum Security Jail. 14. Contract with Greenway Constructors, Inc. for upgrades to the Arena Hall Voting Services Building. 15. Policy establishing the authority of the Commissioners Court to use Justice of the Peace Technology Funds in payment of upgrading technology, the cost of continuing education and training regarding technological enhancements to Justice of the Peace courts. 16. Request from all Brazos County Justices of the Peace for the Commissioners Court to set aside $50,000.00 from the Justice of the Peace Technology Fund, in addition to the $300,000 already budgeted, to assist with the software replacement program. 17. Brazos County Juvenile Detention Center Local Wellness Plan, as requested by the Department of Agriculture (NSLP) as part of the National School Lunch Program criteria for approval of the NSLP contract. 18. Revision of Section 4.03.2 to the County Employee Manual regarding Longevity, as follows: All full-time and part-time regular employees, to include elected officials and to exclude temporary employees, shall be eligible for the longevity pay benefit. 19. Tax Refund Applications for the following: a. Stephen & Yolanda Cassity d. Janice Corgey Lowe b. Franklin S. Higginbotham e. Paul W. & Veronica M. Magee c. Lynda Dewitt Kalantzakis f. Paul L. Walton 20. Commissioners Court minutes for the following 2008 dates: a. 4 March Regular Meeting b. 4 March Workshop Session c. 11 March Regular Meeting d. 18 March Regular Meeting e. 25 March Special Meeting 21. Permission to advertise Bid 2008-042, Auctioneer Services for Brazos County. 22. Permission to advertise RFP 2008-043, Collection of Delinquent Criminal and Civil Fines and Fees. Commissioners Court Agenda 19 August 2008 Page 3 23. Request from Wickson Creek Special Utility District to construct a road bore for water line installations in the right of way of Dilly Shaw Tap Road (approximately 200 ft. from Reed Lane). Site is located in Precinct 2. 24. Payment Authorization in the amount of $90.95 to Interstate Batteries for the purchase of a new battery for a Precinct 3 Constable patrol car; a purchase order was not obtained in advance. 25. Payment Authorization in the amount of $713.30 to Lowe's Home Centers, Inc. for the purchase of plywood used in the construction of storage shelving for the District Clerk's Office; a purchase order was not obtained in advance. 26. Payment Authorization in the amount of $2,062.00 to Metal Mart for the purchase of metal strips and screws used in the construction of storage shelving for the District Clerk's Office; a purchase order was not obtained in advance. 27. Payment Authorization in the amount of $691.43 for the purchase of a refrigerator for Commissioners Court; a purchase order was not obtained in advance. 28. Acknowledgement of the Investment Report for the quarter ending 6/30/08. 29. Announcement of interest items and possible future agenda topics. 30. Call for citizen input and/or concerns. 31. Agency / Board / Committee reports by Court members. 32. Adjourn The Brazos Center is wheelchair accessible. Handicap parking spaces are available. Any request for sign interpretive services must be made two business days before the meeting. To make arrangements, call (979) 361-4102. _ 1 L J_ Y7 COMMISSIONERS' COURT REGULAR MEETING AUGUST 19, 2008 A regular meeting of the Commissioners' Court of Brazos County, Texas was held in the Brazos Center, 3232 Briarcrest Drive, in Bryan, Brazos County, Texas, beginning at 6:00 p.m. on Tuesday, August 19, 2008 with the following members of the Court present: Randy Sims, County Judge, Presiding; Lloyd Wassermann, Commissioner of Precinct 1; Duane Peters, Commissioner of Precinct 2; Kenny Mallard, Commissioner of Precinct 3; Carey Cauley, Jr., Commissioner of Precinct 4; Karen McQueen, County Clerk, Absent. The attached sheet contains the names of the citizens and officials that were in attendance. Commissioner Peters gave the invocation and led the pledge of allegiance. There was no citizen input/and or concerns. The first matter before the Court was the presentation of the proposed budget for the 2008-2009 budget year. The proposed budget was handed to the County Clerk and directed that it be filed in that office according to law. The Court next considered Budget Amendment #07/08-42.1 through 42.15, which would reallocate funds for the County Vol Page 13~ Commissioners Court meeting August 19, 2008 2 Attorney, District Clerk Management Fund-HAVA-General Compliance Fund, District Attorney (2), Constable, Precinct 3, Road & Bridge Department, Jail Expansion Fund, Juvenile Academy, Capital Improvement Fund, Juvenile Services; transfer funds from Contingency to Capital Improvement Fund- Commissioners Court and Road & Bridge Department, Court Costs; and transfer funds from Building Maintenance to Capital Improvement Fund, GDEM-State Homeland Security Grant; reverse budget amendment 07/08-31.13 Capital Improvement Fund-Road and Bridge (2), reverse budget amendment 07/08-41.1 Emergency Management; Transfer funds from Capital Improvement Fund- Constable Precinct 3 to Capital Improvement Fund. On motion by Commissioner Cauley, seconded by Commissioner Peters, the Court voted unanimously to approve the budget amendment as submitted, a copy of which 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 Cauley, seconded by Commissioner Peters, the Court voted unanimously to approve the change of status as submitted. The Court next considered the following Claims as submitted by the County Treasurer for payment: 7052993 through 7053241 Vol III Page 139 Commissioners Court meeting August 19, 2008 3 On motion by Commissioner Peters, seconded by Commissioner Wassermann, the Court voted unanimously to approve the Claims as submitted. The next matter before the Court was consideration of Resolution 08-013 initiating eminent domain proceeding regarding the property at 100 South Texas Avenue, 0.264 acres being Lots 9 and 10, Block 25, City of Bryan, Brazos County, Texas. 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 establishing the date and time for a Public Hearing on the proposed budget for fiscal year 2009. On motion by the County Judge, seconded by Commissioner Cauley, the Court voted unanimously to set 10:00 a.m., Thursday, September 4, 2008 in the County Administration Building, Commissioners Courtroom as the date time and location of the Public Hearing on the proposed budget. The next matter before the Court was consideration of proposal to increase tax revenues. The proposal is from $.465 to $.48 per $100 dollar valuation be assessed on all real property in Brazos County. On motion by the County Judge, seconded by Commissioner Cauley, the Court voted unanimously to propose the $.48 per $100 dollar valuation. Vol I I I Page 1140 Commissioners Court meeting August 19, 2008 4 The next matter before the Court was the establishment of the dates and times for two Public Hearings for a tax increase. On motion by Commissioner Cauley, seconded by Commissioner Peters, the Court voted unanimously to set 2:00 p.m., Thursday, September 4, 2008 and 2:00 p.m., Tuesday, September 9, 2008 at the County Administration Building, Commissioners Courtroom as the location, dates and times for the Public Hearings for a tax increase. The Court next considered the reappointment of Dr. Roland Haden to the Board of Directors of the Research Valley Partnership. On motion by Commissioner Peters, seconded by Commissioner Cauley, the Court voted unanimously to reappoint Dr. Roland Haden to serve on the Board of Directors of the Research Valley Partnership for a term beginning August 1, 2008 through July 31, 2011. The Court next considered the cancellation of the regular session of Commissioners Court scheduled for August 26, 2008. On motion by Commissioner Mallard, seconded by Commissioner Cauley, the Court voted unanimously to not cancel the Commissioners Court meeting of August 26, 2008. The next matter before the Court was consideration of a contract with Greenway Constructors, Inc. for upgrades to the Minimum Security Jail. The stipulated sum shall be $1,100,000. Vol [ I Page I'-f l Commissioners Court meeting August 19, 2008 5 On motion by Commissioner Peters, seconded by Commissioner Wassermann, the Court voted unanimously to approve the contract and authorized the County Judge to execute the document. A copy is attached. The next matter before the Court was consideration of a contract with Greenway Constructors, Inc. for upgrades to the Arena Hall Voting Services Building. The stipulated sum shall be $295,298. On motion by Commissioner Peters, seconded by Commissioner Cauley, the Court voted unanimously to approve the contract and authorized the County Judge to execute the document. A copy is attached. The Court next considered a policy establishing the authority of the Commissioners court to use Justice of the Peace Technology Funds in payment of upgrading technology, the cost of continuing education and training regarding technological enhancements to Justice of the Peace courts. On motion by Commissioner Wassermann, seconded by Commissioner Cauley, the Court voted unanimously to approve the proposed policy. A copy is attached. The next matter before the Court was a request from all the Justices of the Peace asking that the Court se aside an additional $50,000 from the Justice Court Technology Fund to assist the software replacement program. On motion by Vol I I I Page 141 Commissioners Court meeting August 19, 2008 6 Commissioner Cauley, seconded by Commissioner Peters, the Court voted unanimously to set aside the additional funds. The Court next considered a request from the Brazos County Juvenile Detention Center Superintendent, Patrick Munoz for approval of the proposed JDC Local Wellness Plan. In a memo to the Court Mr. Munoz said that the proposed plan was in response to a request by the Department of Agriculture to formulate a local wellness plan as part of the National School Lunch Program (NSLP) for the approval of the NSLP. The proposed program was developed by Mr. Munoz along with a certified nutritionist and used the Texas Juvenile Probation Commission Standards and Texas Education Agency Standards of Physical Education and Recreation. On motion by Commissioner Cauley, seconded by Commissioner Peters, the Court voted unanimously to approve the proposed wellness plan. A copy is attached. The next matter before the Court was consideration of a request for revision of Section 4.03.2 to the County Employee Manual concerning Longevity. The revision is as follows: Old: All full time regular employees to include elected officials and to exclude temporary employees, shall e eligible for the longevity pay benefit. New: All full time and part time regular employees, to include elected officials and to exclude temporary employees, shall be eligible for the longevity pay benefit. Vol III Page ~ q oz Commissioners Court meeting August 19, 2008 7 On motion by Commissioner Wassermann, seconded by Commissioner Peters, the Court voted unanimously to approve the request. A copy is attached. The next matter for consideration was approval of tax refund applications from the following individuals and/or companies: a) Stephen & Yolanda Cassity, Over Payment $1,352.79 b) Franklin S. Higginbotham, Over Payment $26.00 c) Lynda Dewitt Kalantzakis, Over Payment $214.95 d) Janice Corgey Lowe, Over Payment $163.51 e) Paul W. & Veronica M. Magee, Over Payment $44.97 f) Paul L. Walton, Over Payment $169.61 On motion by Commissioner Peters, seconded by Commissioner Wassermann, the Court voted unanimously to approve the tax refund applications. The Court next considered approval of the minutes of the Commissioners' Court meetings held in March 2008 on the following dates: Regular Meetings - 4tn, llth1 18tH Workshop Session - 4th Special Meeting - 25th on motion by Commissioner Cauley, seconded by Commissioner Peters, the Court voted unanimously to approve the minutes as submitted. The next matter for consideration was approval for the Purchasing Agent to advertise Bid 2008-042, Auctioneer Services for Brazos County. On motion by Commissioner Peters, seconded Vol I ( ( Page 143 Commissioners Court meeting August 19, 2008 8 for Brazos County. On motion by Commissioner Peters, seconded by Commissioner Cauley, the Court voted unanimously to authorize the Purchasing Agent to advertise for bids for Auctioneer Services. The next matter for consideration was approval for the Purchasing Agent to advertise RFP 2008-043, Collection of Delinquent Criminal and Civil Fines and Fees. Commissioner Wassermann moved to approve. Commissioner Cauley seconded the motion. Pat Howard, Purchasing Agent, informed the Court that this was not needed as they will ask that the current contract be renewed. Commissioners Wassermann and Cauley withdrew their motion and second. Then on motion by Commissioner Mallard, seconded by Commissioner Peters, the Court voted unanimously to remove this item from the agenda. The Court next considered the request from Wickson Creek Special Utility District to construct a road bore for water line installations in the right-of-way of Dilly Shaw Tap Road approximately 200 feet from Reed Lane. The site is located in Precinct 2. The County Engineer stated that all appeared to be in order and recommended approval. On motion by Commissioner Peters, seconded by Commissioner Wassermann, the Court voted unanimously to approve the request from Wickson Creek Special Utility District and authorized the installation. A copy of Vol ( l ( Page 144 Commissioners Court meeting August 19, 2008 9 the request is attached hereto. The next matter before the Court was consideration of a payment authorization in the amount of $90.95 to Interstate Batteries. A purchase order was not obtained prior to the purchase. On motion by Commissioner Mallard, seconded by Commissioner Cauley, the Court voted unanimously to approve the payment authorization. The Court next considered a payment authorization in the amount of $713.30 to Lowe's Home Centers, Inc. for the purchase of plywood. No purchase order was obtained in advance. On motion by the County Judge, seconded by Commissioner Mallard, the Court voted unanimously to approve the payment authorization. The Court next considered a payment authorization in the amount of $2,062.00 to Metal Mart for the purchase of metal strips for shelving. No purchase order was obtained in advance. The County Judge said that the District Clerk had asked him to thank the Sheriff for the help he received from the office and crew. On motion by Commissioner Cauley, seconded by Commissioner Peters, 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 $691.00 to Lowe's Home Vol I I I Page N5. Commissioners Court meeting August 19, 2008 10 Centers, Inc. for a refrigerator. No purchase order was obtained in advance. On motion by Commissioner Peters, seconded by Commissioner Cauley, the Court voted unanimously to approve the payment authorization. The Court acknowledged receipt of the Quarter Ending June 30, 2008 Investment Report and ordered it filed as submitted. A copy is attached to and made a part of these minutes. Under announcement of interest items and possible future agenda topics the following spoke: Gary Arnold, Road & Bridge Department a) Asked if the Burn Ban would be considered anytime soon. The County Judge replied that the Court would have a special meeting on Friday to discuss it. Under citizen input and/or concerns, the following spoke: Sheriff Chris Kirk a) Said that there were 551 inmates in jail currently and 87 are on electronic monitoring. Under Agency/Board/Committee reports by Court members, the following spoke: Commissioner Mallard a) He attended a Transportation Summit in Irving. There was lots of talk on the high speed rail and fuel costs. Conserving fuel is important but roads Vol I I I Page t 46,- Commissioners Court meeting August 19, 2008 11 are funded based on fuel consumption. He is working to find an answer to this. There being no further business to come before the Court, the meeting was adjourned. Vol i C l Page l q7. The foregoing minutes of the Commissioners Court meeting held August 19, 2008 have been examined and are approved in open Court this the day of ~I , 2008, in Bryan, c Duane Peters Commissioner, Precinct 2 arey C uley, Jr. Commis 7ioner, Precinct /4 Attest: Q~ (~L aren McQueen County Clerk "0 Z Lloy Wassermann Commissioner, Precinct 1 Kenny Mallal\dj Commissioner, Precinct Vol I I I Page I q g Brazos County, Texas. r"3 41 BRAZOS COUNTY COMMISSIONERS COURT ? MEETING ON 2008 AT ~ * I'V Name (PLEASE PRINT) Organization/Department n J! 07 %Z-" IL L((,% a ~l e tt 5~ ~~c cf~ G C Alw n 611-e e' e,/ 2 ~l e- may/ v v BRAZOS COUNTY COMMISSIONERS COURT MEETING ON , 2008 AT E_ 150 -11 , BRAZOS COUNTY, TEXAS BUDGET AMENDMENT(S) FOR THE 2007-2008 BUDGET YEAR NO. 07/08-42.1 thru 07/08-42.15 On this the 19'b day of August 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 19 August 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 19th day of August 2008. THE COMMISSIONERS COURT OF BRAZOS COUNTY, TEXAS. By: Randy Sipfs, County Judge 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 - 42.1 Rl4 9t9nnR FUND DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 0100 0100 0100 18000100 18000100 18000100 60400000 60600000 65950000 CR CR CR Investigative Supplies Office Supplies Vehicle Maintenance 1,500.00 2,500.00 1,000.00 0100 18000100 65350000 DR Gasoline 5,000.00 County Att orney To reallocate funds to allow for the additional cost of asoline. Prepared By: ifj Date: 8/7/2008 Department Approval Date BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 07108 - 42.2 8/19/2008 FUND DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 2300 20005000 61130000 CR Contingency 2,780.00 2300 20005000 65050000 DR Building Maintenance 2,780.00 6 District Clerk Management Fund To reallocate funds for costs associated with managing records. L- L Prepared By: ifj Date: 81712008 63 Department Approval Date A In BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 07/08 - 42.3 Rm citrons FUND DIV ACCT PROJ DR/CR ACCOUNT NAME 3000 212100 61130000 CR Contingency - HAVA 3000 212100 80101004 DR Building Renovation - Arena Hall HAVA-General Compliance Grant Fund I I To reallocate funds to allow for the remodel of Arena Hall. Increase Decrease 472,145.00 472,145.00 Prepared By: lfj Date: 81712008 Departme County Jud; BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 07/08 - 42.4 811912008 FUND DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 0100 19000100 59100000 CR DDEA 18,976.10 0100 19000100 67203000 DR Minor Computer Hardware 11,402.00 0100 19000100 67281000 DR Equipment - Electronic 21570.10 0100. 19000100 67286000 DR Equipment - Other 4,473.00 0100 19000100 60600000 DR Office Supplies 531.00 District At torney: To reallocate funds to allow for the purchases of la sto s for assistant district attorneys, two new rojectors, a business shredder and supplies for the shredder. Please note that the amount and the account line items used are different from what was approved b the commissioners' Court on 8/12/08. The difference is to correct an error in calculation and make sure that the ex enditure will be charged to the appropriate accounts. Departm Prepared By: fd Date: 8/8/2008 Date County JudgiApproval Date g, , 55 BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 07108 - 42.5 Q►1fo►linna FUND 0100 0100 DIV 30301100 30301100 ACCT 60080000 59100000 PROJ DR/CR CR CR v ACCOUNT NAME Clothing/Uniforms DDEA Increase Decrease 700.00 1,031.00 0100 30301100 67286000 DR Equipment - Other 700.00 0100 30301100 65350000 DR Gasoline 531.00 0100 30301100 65950000 DR Vehicle Maintenance 500.00 Constable Pct. 3: To reallocate funds to allow for the purchase of a bulle t- roof vest and to cover the expenditure in gasoline and vehicle maintenance. Z ti 42 ZEN/ =3 ~ III ~ 15ly BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 07/08 - 42.6 8/19/2008 FUND DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 4500 63000500 80440000 CR Land 100,000.00 4500 49028000 DR Transfer from General Fund 100,000.00 0100 91110000 CR Transfer to Capital Improvement 100,000.00 0100 56001000 61130000 DR Contingency 100,000.00 0100 56001000 61130000 CR Contingency 100,000.00 0100 56001000 80440000 DR Land 100,000.00 Capital Im rovement Fund - Road & Brid e: This budget amendment is: 1). To reverse budget amendment No. 07/08 - 31.13 that was approved b the Commissioners' Court on 5/20/20 08. Judge Sims thinks that it is more appropriate to leave the budget of the land and building (e ui ment shed) for Road & Bride in the Department. 2). To correct/ reallocate funds for the purchase and preparation of the land that will be used to build an equip ment shed as requested y the Department. Approval Date Prepared By: fd Date: 81812008 unty Juo§e Approval Date Prepared By: fd Date: 818/2008 BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 07108 - 42.7 QioiamnnR Date County Ju a Approval Date III 169 BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 07/08 - 42.8 8/19/2008 FUND DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 0100 56001000 61130000 CR Contingency 101,206.04 0100 56001000 80440000 CR Land 39,090.60 0100 56001000 80150000 DR Building - R&B 140,296.64 Road & Bridge: To reallocate funds to allow for the construction of the equipment shed. Prepared By: fd Date: 81812008 BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 07/08 - 42.9 R/19/2008 FUND DIV ACCT PROJ DR1CR ACCOUNT NAME Increase Decrease 4308 63430800 80130000 CR Building-Sheriff Jail 10,000.00 4308 63430800 61801000 DR Travel 10,000.00 Jail Expansion Fund To reallocate funds to allow for the payment of trips to look at 'ail equipment. Expenditure allowed if directly related to planning /engineering purposes. Prepared By: ifj Date: 8/1112008 _PQ Department Approval Date BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 07108 - 42.10 o►A nMnno FUND DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 0100 35500100 67281000 CR Equip ment - Electronic 767.00 0100 35500100 80455000 DR Leasehold Improvement 767.00 Emergency Management: To reverse budget amendment No. 07/08 - 41.1 that was approved b the Commissioners' Cour t on 8/12/08. It was later found out that the bud et amendment was incorrect. 3000 355400 80455000 CR Leasehold Improvement 767.00 3000 355400 67281000 DR E ui ment - Electronic 767.00 GDEM - S tate Homeland Securi ty Grant: To reallocate funds to allow for the cost of a QuickMe dia receiver. Prepared By fdY' Date 8112/2008,; BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 07108 - 42.11 RM cumm FUND DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 0100 31000300 71025000 CR Contract Services 8,000.00 0100 31000300 61620000 DR Subscriptions & Publications 8,000.00 0100 31000300 71500000 CR Rental - Equipment 500.00 0100 31000300 61680000 DR Training 500.00 Juvenile - Academ : To reallocate funds to allow for the expenditure in subscri tions/ ublications and training. Prepared `By . al w 4 r. Date P~1,12~,2QA8 +J I pj~~' ~ r+ r L0 BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 07/08 - 42.12 R/19/2nnR FUND DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 4500 49028000 CR Transfer from General Fund 477.70 4500 63000500 80890000 DR Vehicles 477.70 0100 30401100 65550000 CR Radio Maintenance 150.00 0100 30401100 65950000 CR Vehicle Maintenance 327.70 0100 91110000 DR Transfer to Capital Improvement 477.70 Capital Improvement Fund - Constable Pct. 3: To move funds from the Department's budget to the Ca ital Improvement Fund to allow for the additional cost to the new vehicle urchased for the Department ~a Prey r d~By Dater 8'%a 4/2b08' BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 07/08 - 42.13 8/19/2008 FUND DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 4500 63000500 60360000 CR Furniture 1,703.60 4500 63000500 80101001 DR Building Renovation - Admin. 1,703.60 Capital Improvement Fund: To reallocate fund to cover the cost of stripping and waxing the brick floors in the new Admin. Building. to Pyre: ` k By n~ Da I,` 6/4~/2DU8 ~j u BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 07108 - 42.14 RI1919nnR I Decrease FUND DIV ACCT PROJ DR/CR ACCOUNT NAME ncrease 00 900 4 0100 31010000 71500000 CR Rental - Equipment . , 0100 31000100 65350000 DR Gasoline 3,300.00 00 000 1 0100 31000100 72660000 DR Psychiatric Services . , 00 600 0100 31000100 72209000 DR Court Appointed Interpreters . Juvenile Services: To reallocate funds from Juvenile - TYC Parol e Division to Juvenile Admin. Division to cover the cost of asoli ne, psychiatric services an d court a ointed inte reters. Prer~By.~ MP f3 is _ ) ~Gy R } c ^fi'^SFmr in~xr~, ^n~ r a h 3 4F L; Pi DiparmehAppoVal pare BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 07/08 - 42.15 8/19/2008 FUND DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 0100 19000100 51300000 CR Salary - Staff 20,000.00 0100 19000100 51610000 CR Hourly - Staff 5,000.00 0100 19000100 53100000 CR Social Security 2,900.00 0100 19000100 53200000 CR Retirement 4,600.00 0100 19010000 51300000 DR Salary - Staff 20,000.00 0100 19010000 51610000 DR Hourly - Staff 5,000.00 0100 19010000 53100000 DR Social Security 2,900.00 0100 19010000 53200000 DR Retirement 4,600.00 District At torne : To reallocate funds from the DA's Admin. Division to DA - Child Protective Services Division to cover the a roll expenses incurred b the staff wor kin on CPS cases. I?repaTe~ciBY~ "R U PERSONNEL CHANGE OF STATUS REQUESTS Commissioner Court Date: August 19, 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 Brazos Center Zamora, Frank New Hire Building Maintenance Nutall, Dina New Hire County Clerk Gallion, Seth New Hire District Attorney Archambault, Chris Resignation Hamlin, Katye Resignation Heardmon, Zaisha Resignation Flowers, Sierra New Hire Exposition Complex Kasperbauer, Megan New Hire Juvenile Services Lara, Augustin Resignation Mullen, Dana Resignation Metropolitan Planning Organization Rajbhandari, Subrity Resignation Sheriff's Office Smith, Belinda Promotion Approved in Commissioners' Court: August 19, 2008: County Judge's or Commissioner's Signature: (This Copy to be attached to minutes) l~l~ 167 Document A141 TM -2004 AIA Standard Form of Agreement Between Owner and Design-Builder AGREEMENT made as of the 8th day of August in the year of Two Thousand Eight (In words, indicate day, month and year) BETWEEN the Owner: (Name, address and other information) Brazos County 300 East 26`n Street Bryan, Texas 77803 and the Design-Builder: (Name, address and other information) Greenway Constructors, Inc. - Patterson Architects P.O. Box 11184 College Station, Texas 77842 Telephone Number: 979-220-5596 Fax Number: 979-690-1676 For the following Project: (Name, location and detailed description) .W n mum Security Facility Sandy Point Road Bryan, Texas Design-Build 7500 sf minimum security facility for Brazos County The Owner and Design-Builder agree as follows. ~~/(3 ADDITIONS AND DELETIONS: The author of this document has added information needed for its completion. The author may also have revised the text of the original AIA standard form. An Additions and Deletions Report that notes added information as well as revisions to the standard form text is available from the author and should be reviewed. A vertical line in the left margin of this document indicates where the author has added necessary information and where the author has added to or deleted from the original AIA text. This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. Consultation with an attorney is also encouraged with respect to professional licensing requirements in the jurisdiction where the Project is located. Init. AIA Document A141TM - 2004. Copyright ® 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA- Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software / at 13:46:40 on 08/18/2008 under Order No.1000358556_1 wh'ch expire qp 6/f&rgnd is not for resale. User Notes:; 16p, I TT tQ a (341045743) TABLE OF ARTICLES THE DESIGN-BUILD DOCUMENTS 2 WORK OF THIS AGREEMENT 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION 4 CONTRACT SUM 5 PAYMENTS DISPUTE RESOLUTION MISCELLANEOUS PROVISIONS ENUMERATION OF THE DESIGN-BUILD DOCUMENTS TABLE OF EXHIBITS A TERMS AND CONDITIONS B DETERMINATION OF THE COST OF THE WORK C INSURANCE AND BONDS ARTICLE 1 THE DESIGN-BUILD DOCUMENTS § 1.1 The Design-Build Documents form the Design-Build Contract. The Design-Build Documents consist of this Agreement between Owner and Design-Builder (hereinafter, the "Agreement") and its attached Exhibits; Supplementary and other Conditions; Addenda issued prior to execution of the Agreement; the Project Criteria, including changes to the Project Criteria proposed by the Design-Builder and accepted by the Owner, if any; the Design-Builder's Proposal and written modifications to the Proposal accepted by the Owner, if any; other documents listed in this Agreement; and Modifications issued after execution of this Agreement. The Design-Build Documents shall not be construed to create a contractual relationship of any kind (1) between the Architect and Owner, (2) between the Owner and a Contractor or Subcontractor, or (3) between any persons or entities other than the Owner and Design-Builder, including but not limited to any consultant retained by the Owner to prepare or review the Project Criteria. An enumeration of the Design-Build Documents, other than Modifications, appears in Article 8. § 1.2 The Design-Build Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. § 1.3 The Design-Build Contract may be amended or modified only by a Modification. A Modification is (1) a written amendment to the Design-Build Contract signed by both parties, (2) a Change Order, (3) a Construction Change Directive or (4) a written order for a minor change in the Work issued by the Owner. ARTICLE 2 THE WORK OF THE DESIGN-BUILD CONTRACT § 2.1 The Design-Builder shall fully execute the Work described in the Design-Build Documents, except to the extent specifically indicated in the Design-Build Documents to be the responsibility of others. ARTICLE 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION § 3.1 The date of commencement of the Work shall be the date of this Agreement unless a different date is stated below or provision is made for the date to be fixed in a notice issued by the Owner. (Insert the date of commencement if it differs from the date of this Agreement or, if applicable, state that the date will be ftxed in a notice to proceed.) Init. AIA Document A141Tm -2004. Copyright ® 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in 2 severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software / at 13:46:40 on 08/1812008 under Order No.1000358556_1 Nhich ~ . e ton S(W2019 gangs not for resale. (341045743) User Notes: 1l it (o The commencement date will be fixed in a notice to proceed. If, prior to the commencement of Work, the Owner requires time to file mortgages, documents related to mechanic's liens and other security interests, the Owner's time requirement shall be as follows: (Insert Owner's time requirements.) Not applicable § 3.2 The Contract Time shall be measured from the date of commencement, subject to adjustments of this Contract Time as provided in the Design-Build Documents. (Insert provisions, if any, for liquidated damages relating to failure to complete on time or for bonus payments for early completion of the Work.) Not applicable § 3.3 The Design-Builder shall achieve Substantial Completion of the Work not later than 210 days from the date of commencement, or as follows: (Insert number of calendar days. Alternatively, a calendar date may be used when coordinated with the date of commencement. Unless stated elsewhere in the Design-Build Documents, insert any requirements for earlier Substantial Completion of certain portions of the Work.) Portion of Work Substantial Completion Date ARTICLE 4 CONTRACT SUM § 4.1 The Owner shall pay the Design-Builder the Contract Sum in current funds for the Design-Builder's performance of the Design-Build Contract. The Contract Sum shall be one of the following: (Check the appropriate box.) [ X ] Stipulated Sum in accordance with Section 4.2 below; [ ] Cost of the Work Plus Design-Builder's Fee in accordance with Section 4.3 below; [ ] Cost of the Work Plus Design-Builder's Fee with a Guaranteed Maximum Price in accordance with Section 4.4 below. (Based on the selection above, complete either Section 4.2, 4.3 or 4.4 below.) § 4.2 STIPULATED SUM § 4.2.1 The Stipulated Sum shall be One Million One Hundred Thousand and No/100 Dollars ( $1,100,000.00), subject to additions and deductions as provided in the Design-Build Documents. § 4.2.2 The Stipulated Sum is based upon the following alternates, if any, which are described in the Design-Build Documents and are hereby accepted by the Owner: No alternates are included at this time. § 4.2.3 Unit prices, if any, are as follows: Description Units Price 0.00) None § 4.2.4 Allowances, if any, are as follows: (Identify and state the amounts of any allowances, and state whether they include labor, materials, or both) Init. AIA Document A141 TM - 2004. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in 3 severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:46:40 on 08/18/2008 under Order No.1000358556_1 which expires on 6/212009, and is not for resale. User Notes: (341045743) i I o'- 17o Allowance Amount 0.001 Included Items § 4.2.5 Assumptions or qualifications, if any, on which the Stipulated Sum is based, are as follows: Pet- No Assumptions or qualifications are made at this time. I § 4.3 COST OF THE WORK PLUS DESIGN-BUILDER'S FEE § 4.3.1 The Cost of the Work is as defined in Exhibit B. § 4.3.2 The Design-Builder's Fee is: (State a lump sum, percentage of Cost of the Work or other provision for determining the Design-Builder's Fee and the method of adjustment to the Fee for changes in the Work.) § 4.4 COST OF THE WORK PLUS DESIGN-BUILDER'S FEE WITH A GUARANTEED MAXIMUM PRICE § 4.4.1 The Cost of the Work is as defined in Exhibit B, plus the Design-Builder's Fee. § 4.4.2 The Design-Builder's Fee is: (State a lump sum, percentage of Cost of the Work or other provision for determining the Design-Builder's Fee and the method of adjustment to the Fee for changes in the Work.) § 4.4.3 GUARANTEED MAXIMUM PRICE § 4.4.3.1 The sum of the Cost of the Work and the Design-Builder's Fee is guaranteed by the Design-Builder not to exceed ( $ subject to additions and deductions by changes in the Work as provided in the Design-Build Documents. Such maximum sum is referred to in the Design-Build Documents as the Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Design-Builder without reimbursement by the Owner. (Insert specific provisions if the Design-Builder is to participate in any savings.) § 4.4.3.2 The Guaranteed Maximum Price is based on the following alternates, if any, which are described in the Design-Build Documents and are hereby accepted by the Owner: § 4.4.3.3 Unit Prices, if any, are as follows: Description Units Price 0.00) § 4.4.3.4 Allowances, if any, are as follows: (Identify and state the amounts of any allowances, and state whether they include labor, materials, or both.) Allowance Amount 0.00) Included Items § 4.4.3.5 Assumptions, if any, on which the Guaranteed Maximum Price is based, are as follows: (Identify the assumptions on which the Guaranteed Maximum Price is based.) Init. AIA Document A141 rm - 2004. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA" Document, or any portion of it, may result in 4 severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:46:40 on 08/18/2008 under Order No.1000358556wthich expires on 6/2/200I1, aid is not for resale. User Notes: -17 1 (341045743) § 4.5 CHANGES IN THE WORK § 4.5.1 Adjustments of the Contract Sum on account of changes in the Work may be determined by any of the methods listed in Article A.7 of Exhibit A, Terms and Conditions. § 4.5.2 Where the Contract Sum is the Cost of the Work, with or without a Guaranteed Maximum Price, and no specific provision is made in Sections 4.3.2 or 4.4.2 for adjustment of the Design-Builder's Fee in the case of Changes in the Work, or if the extent of such changes is such, in the aggregate, that application of the adjustment will cause substantial inequity to the Owner or Design-Builder, the Design-Builder's Fee shall be equitably adjusted on the basis of the Fee established for the original Work, and the Contract Sum shall be adjusted accordingly. ARTICLE 5 PAYMENTS § 5.1 PROGRESS PAYMENTS § 5.1.1 Based upon Applications for Payment submitted to the Owner by the Design-Builder, the Owner shall make progress payments on account of the Contract Sum to the Design-Builder as provided below and elsewhere in the Design-Build Documents. § 5.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month, or as follows: § 5.1.3 Provided that an Application for Payment is received not later than the last day of month, the Owner shall make payment to the Design-Builder not later than the 10th day of the following month. If an Application for Payment is received by the Owner after the application date fixed above, payment shall be made by the Owner not later than five ( 5 ) days after the Owner receives the Application for Payment. § 5.1.4 With each Application for Payment where the Contract Sum is based upon the Cost of the Work, or the Cost of the Work with a Guaranteed Maximum Price, the Design-Builder shall submit payrolls, petty cash accounts, receipted invoices or invoices with check vouchers attached, and any other evidence required by the Owner to demonstrate that cash disbursements already made by the Design-Builder on account of the Cost of the Work equal or exceed (1) progress payments already received by the Design-Builder, less (2) that portion of those payments attributable to the Design-Builder's Fee; plus (3) payrolls for the period covered by the present Application for Payment. § 5.1.5 With each Application for Payment where the Contract Sum is based upon a Stipulated Sum or Cost of the Work with a Guaranteed Maximum Price, the Design-Builder shall submit the most recent schedule of values in accordance with the Design-Build Documents. The schedule of values shall allocate the entire Contract Sum among the various portions of the Work. Compensation for design services shall be shown separately. Where the Contract Sum is based on the Cost of the Work with a Guaranteed Maximum Price, the Design-Builder's Fee shall be shown separately. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Owner may require. This schedule of values, unless objected to by the Owner, shall be used as a basis for reviewing the Design-Builder's Applications for Payment. § 5.1.6 In taking action on the Design-Builder's Applications for Payment, the Owner shall be entitled to rely on the accuracy and completeness of the information furnished by the Design-Builder and shall not be deemed to have made a detailed examination, audit or arithmetic verification of the documentation submitted in accordance with Sections 5.1.4 or 5.1.5, or other supporting data; to have made exhaustive or continuous on-site inspections; or to have made examinations to ascertain how or for what purposes the Design-Builder has used amounts previously paid on account of the Agreement. Such examinations, audits and verifications, if required by the Owner, will be performed by the Owner's accountants acting in the sole interest of the Owner. § 5.1.7 Except with the Owner's prior approval, the Design-Builder shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. Init. AIA Document A141 TM - 2004. Copyright m 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in 5J severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software / at 13:46:40 on 08/18/2008 under Order No.1000358556_1 which expires on 6/212009, and is not for resale. User Notes: (341045743) 17Z § 5.2 PROGRESS PAYMENTS - STIPULATED SUM § 5.2.1 Applications for Payment where the Contract Sum is based upon a Stipulated Sum shall indicate the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. § 5.2.2 Subject to other provisions of the Design-Build Documents, the amount of each progress payment shall be computed as follows: .1 Take that portion of the Contract Sum properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Contract Sum allocated to that portion of the Work in the schedule of values, less retainage of ( ) on the Work, other than services provided by design professionals and other consultants retained directly by the Design-Builder. Pending final determination of cost to the Owner of Changes in the Work, amounts not in dispute shall be included as provided in Section A.7.3.8 of Exhibit A, Terms and Conditions; .2 Add that portion of the Contract Sum properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the completed construction (or, if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing), less retainage of five ( 5% .3 Subtract the aggregate of previous payments made by the Owner; and .4 Subtract amounts, if any, for which the Owner has withheld payment from or nullified an Application for Payment as provided in Section A.9.5 of Exhibit A, Terms and Conditions. § 5.2.3 The progress payment amount determined in accordance with Section 5.2.2 shall be further modified under the following circumstances: .1 add, upon Substantial Completion of the Work, a sum sufficient to increase the total payments to the full amount of the Contract Sum, less such amounts as the Owner shall determine for incomplete Work, retainage applicable to such work and unsettled claims; and (Section A.9.8.6 of Exhibit A, Terms and Conditions requires release of applicable retainage upon Substantial Completion of Work with consent of surety, if any.) .2 add, if final completion of the Work is thereafter materially delayed through no fault of the Design- Builder, any additional amounts payable in accordance with Section A.9.10.3 of Exhibit A, Terms and Conditions. § 5.2.4 Reduction or limitation of retainage, if any, under Section 5.2.2 shall be as follows: (If it is intended, prior to Substantial Completion of the entire Work, to reduce or limit the retainage resulting from the percentages inserted in Sections 5.2.2.1 and 5.2.2.2 above, and this is not explained elsewhere in the Design- Build Documents, insert here provisions for such reduction or limitation.) § 5.3 PROGRESS PAYMENTS - COST OF THE WORK PLUS A FEE § 5.3.1 Where the Contract Sum is based upon the Cost of the Work plus a fee without a Guaranteed Maximum Price, Applications for Payment shall show the Cost of the Work actually incurred by the Design-Builder through the end of the period covered by the Application for Payment and for which Design-Builder has made or intends to make actual payment prior to the next Application for Payment. § 5.3.2 Subject to other provisions of the Design-Build Documents, the amount of each progress payment shall be computed as follows: .1 Take the Cost of the Work as described in Exhibit B; .2 Add the Design-Builder's Fee, less retainage of ( % The Design-Builder's Fee shall be computed upon the Cost of the Work described in the preceding Section 5.3.2.1 at the rate stated in Section 4.3.2; or if the Design-Builder's Fee is stated as a fixed sum in that section, an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work in the preceding section bears to a reasonable estimate of the probable Cost of the Work upon its completion; .3 Subtract the aggregate of previous payments made by the Owner; AIA Document A141 TM - 2004. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected Init. by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in 6 severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software / at 13:46:40 on 08/18/2008 under Order No.1000358556_1 which ex pires on 6/2/2009, and is not for resale. 3 (341045743) User Notes: Y 1,7 .4 Subtract the shortfall, if any, indicated by the Design-Builder in the documentation required by Section 5.1.4 or resulting from errors subsequently discovered by the Owner's accountants in such documentation; and .5 Subtract amounts, if any, for which the Owner has withheld or withdrawn a Certificate for Payment as provided in the Section A.9.5 of Exhibit A, Terms and Conditions. § 5.3.3 Retainage in addition to the retainage stated at Section 5.3.2.2, if any, shall be as follows: § 5.3.4 Except with the Owner's prior approval, payments for the Work, other than for services provided by design professionals and other consultants retained directly by the Design-Builder, shall be subject to retainage of not less than ( % The Owner and Design-Builder shall agree on a mutually acceptable procedure for review and approval of payments and retention for Contractors. § 5.4 PROGRESS PAYMENTS - COST OF THE WORK PLUS A FEE WITH A GUARANTEED MAXIMUM PRICE § 5.4.1 Applications for Payment where the Contract Sum is based upon the Cost of the Work Plus a Fee with a Guaranteed Maximum Price shall show the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. The percentage of completion shall be the lesser of (1) the percentage of that portion of the Work which has actually been completed; or (2) the percentage obtained by dividing (a) the expense that has actually been incurred by the Design-Builder on account of that portion of the, Work for which the Design-Builder has made or intends to make actual payment prior to the next Application for Payment by (b) the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. § 5.4.2 Subject to other provisions of the Design-Build Documents, the amount of each progress payment shall be computed as follows: .1 Take that portion of the Guaranteed Maximum Price properly allocable to completed Work as determined by multiplying the percentage of completion of each portion of the Work by the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. Pending final determination of cost to the Owner of changes in the Work, amounts not in dispute shall be included as provided in Section A.7.3.8 of Exhibit A, Terms and Conditions; .2 Add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work, or if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing; .3 Add the Design-Builder's Fee, less retainage of ( % The Design-Builder's Fee shall be computed upon the Cost of the Work described in the two preceding sections at the rate stated in Section 4.4.2 or, if the Design-Builder's Fee is stated as a fixed sum in that section, shall be an amount that bears the same ratio to that fixed-sum fee as the Cost of the Work in the two preceding sections bears to a reasonable estimate of the probable Cost of the Work upon its completion; .4 Subtract the aggregate of previous payments made by the Owner; .5 Subtract the shortfall, if any, indicated by the Design-Builder in the documentation required by Section 5.1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by the Owner's accountants in such documentation; and .6 Subtract amounts, if any, for which the Owner has withheld or nullified a Certificate for Payment as provided in Section A.9.5 of Exhibit A, Terms and Conditions. § 5.4.3 Except with the Owner's prior approval, payments for the Work, other than for services provided by design professionals and other consultants retained directly by the Design-Builder, shall be subject to retainage of not less than ( % The Owner and Design-Builder shall agree on a mutually acceptable procedure for review and approval of payments and retention for Contractors. § 5.5 FINAL PAYMENT § 5.5.1 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Design-Builder no later than 30 days after the Design-Builder has fully performed the Design-Build Contract, including the requirements in Section A.9.10 of Exhibit A, Terms and Conditions, except for the Design-Builder's Init. AIA Document At 41 TM - 2004. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in 7 severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software / at 13:46:40 on 08/18/2008 under Order No.100035855671 which expires on 6/2/2009, and is not for resale. User Notes: EA1 (341045743) responsibility to correct non-conforming Work discovered after final payment or to satisfy other requirements, if any, which extend beyond final payment. ARTICLE 6 DISPUTE RESOLUTION § 6.1 The parties appoint the following individual to serve as a Neutral pursuant to Section A.4.2 of Exhibit A, Terms and Conditions: (Insert the name, address and other information of the individual to serve as a Neutral. If the parties do not select a Neutral, then the provisions of Section A.4.2.2 of Exhibit A, Terms and Conditions, shall apply.) Richard D. Faulkner, 6688 N. Central Expressway, Suite 600, Dallas, Texas 75206 § 6.2 If the parties do not resolve their dispute through mediation pursuant to Section A.4.3 of Exhibit A, Terms and Conditions, the method of binding dispute resolution shall be the following: (If the parties do not select a method of binding dispute resolution, then the method of binding dispute resolution shall be by litigation in a court of competent jurisdiction.) (Check one.) [ X ] Arbitration pursuant to Section AAA of Exhibit A, Terms and Conditions [ ] Litigation in a court of competent jurisdiction [ ] Other (Specify) § 6.3 ARBITRATION § 6.3.1 If Arbitration is selected by the parties as the method of binding dispute resolution, then any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to arbitration as provided in Section AAA of Exhibit A, Terms and Conditions. ARTICLE 7 MISCELLANEOUS PROVISIONS § 7.1 The Architect, other design professionals and consultants engaged by the Design-Builder shall be persons or entities duly licensed to practice their professions in the jurisdiction where the Project is located and are listed as follows: (Insert name, address, license number, relationship to Design-Builder and other information.) Name and Address License Number Relationship to Other Information Design-Builder Patterson Architects Architect 701 South Texas Ave Bryan, Texas 77803 § 7.2 Consultants, if any, engaged directly by the Owner, their professions and responsibilities are listed below: (Insert name, address, license number, if applicable, and responsibilities to Owner and other information.) Name and Address License Number Responsibilities Other Information to Owner None at this time § 7.3 Separate contractors, if any, engaged directly by the Owner, their trades and responsibilities are listed below: (Insert name, address, license number, if applicable, `responsibilities to Owner and other information.) Name and Address License Number Responsibilities Other Information to Owner None at this time § 7.4 The Owner's Designated Representative is: (Insert name, address and other information.) Init. AIA Document A141TM - 2004. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in 8 severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software / at 13:46:40 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009 nd is not for resale. User Notes: _ 1 f .,-E (341045743) L l"r Ms. Pat Howard Brazos County Purchasing Agent 300 East 26`s Street Bryan, Texas 77803 § 7.4.1 The Owner's Designated Representative identified above shall be authorized to act on the Owner's behalf with respect to the Project. § 7.5 The Design-Builder's Designated Representative is: (Insert name, address and other information.) Stephen P. Byrne P.O. Box 11184 College Station, Texas 77842 steve_byrne @ verizon. net § 7.5.1 The Design-Builder's Designated Representative identified above shall be authorized to act on the Design Builder's behalf with respect to the Project. § 7.6 Neither the Owner's nor the Design-Builder's Designated Representative shall be changed without ten days written notice to the other party. § 7.7 Other provisions: None at this time. § 7.7.1 Where reference is made in this Agreement to a provision of another Design-Build Document, the reference refers to that provision as amended or supplemented by other provisions of the Design-Build Documents. § 7.7.2 Payments due and unpaid under the Design-Build Contract shall bear interest from the date payment is due at the rate stated below, or in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located. (Insert rate of interest agreed upon, if any.) ( 10 % ) per annum (Usury laws and requirements under the Federal Truth in Lending Act, similar state and local consumer credit laws and other regulations at the Owner's and Design-Builder's principal places of business, the location of the Project and elsewhere may affect the validity of this provision. Legal advice should be obtained with respect to deletions or modifications, and also regarding requirements such as written disclosures or waivers.) ARTICLE 8 ENUMERATION OF THE DESIGN-BUILD DOCUMENTS § 8.1 The Design-Build Documents, except for Modifications issued after execution of this Agreement, are enumerated as follows: § 8.1.1 The Agreement is this executed edition of the Standard Form of Agreement Between Owner and Design- Builder, AIA Document A141-2004. § 8.1.2 The Supplementary and other Conditions of the Agreement, if any, are as follows: (Either list applicable documents below or refer to an exhibit attached to this Agreement.) Title of the Supplementary and Other Conditions exhibit: None at this time. (Table deleted) § 8.1.3 The Project Criteria, including changes to the Project Criteria proposed by the Design-Builder, if any, and accepted by the Owner, consist of the following: (Either list applicable documents and their dates below or refer to an exhibit attached to this Agreement.) Init AIA Document A141 M - 2004. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in 9 severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software / at 13:46:40 on 08/18/2008 under Order No.1000358556 1 which expires on 6/2/2009, and is not for resale. User Notes: (341045743) Title of the Project Criteria exhibit: None at this time. (Table deleted) § 8.1.4 The Design-Builder's Proposal, dated August 8, 2008 , consists of the following: (Either list applicable documents below or refer to an exhibit attached to this Agreement.) Title of the Design-Builder's Proposal: Minimum Security Facility § 8.1.5 Amendments to the Design-Builder's Proposal, if any, are as follows: (Either list applicable documents below or refer to an exhibit attached to this Agreement.) I Title of the Amendments to Design-Builder's Proposal exhibit: None at this time. § 8.1.6 The Addenda, if any, are as follows: (Either list applicable documents below or refer to an exhibit attached to this Agreement.) Title of the Addenda exhibit: None at this time. (Table deleted) § 8.1.7 Exhibit A, Terms and Conditions. (If the parties agree to substitute terns and conditions other than those contained in AIA Document A141-2004, Exhibit A, Terms and Conditions, then identify such terms and conditions and attach to this Agreement as Exhibit A.) I None at this time. § 8.1.8 Exhibit B, Determination of the Cost of the Work, if applicable. (If the parties agree to substitute a method to determine the cost of the Work other than that contained in AIA Document A141-2004, Exhibit B, Determination of the Cost of the Work, then identify such other method to determine the cost of the Work and attach to this Agreement as Exhibit B. If the Contract Sum is a Stipulated Sum, then Exhibit B is not applicable.) § 8.1.9 Exhibit C, Insurance and Bonds, if applicable. (Complete AIA Document A141-2004, Exhibit C, Insurance and Bonds or indicate "not applicable. I See Exhibit "C". § 8.1.10 Other documents, if any, forming part of the Design-Build Documents are as follows: (Either list applicable documents below or refer to an exhibit attached to this Agreement.) I Title of the Other Documents exhibit: This Agree nt enter into as of the day and year first written above. OWNER (Znty ture) DESIGN-B DER (Signature) Brazos Judge Randy Sims Stephen P. Byrne, President (Printed name and title) (Printed name and title) Init. AIA Document A141 TM - 2004. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in 10 severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software / at 13:46:40 on 08/18/2008 under Order No.1 000358556 - I which expires on 6/2/2009, and is not for resale. User Notes " ° 7- 7 (341045743) ltdl Additions and Deletions Report for AIA® Document A141 TM -2004 This Additions and Deletions Report, as defined on page 1 of the associated document, reproduces below all text the author has added to the standard form AIA document in order to complete it, as well as any text the author may have added to or deleted from the original AIA text. Added text is shown underlined. Deleted text is indicated with a horizontal line through the original AIA text. Note: This Additions and Deletions Report is provided for information purposes only and is not incorporated into or constitute any part of the associated AIA document. This Additions and Deletions Report and its associated document were generated simultaneously by AIA software at 13:46:40 on 08/18/2008. PAGE1 AGREEMENT made as of the 8th day of August in the year of Two Thousand Eight (Name, address and other information) Brazos County 300 East 26`h Street Bryan, Texas 77803 Greenway Constructors, Inc. - Patterson Architects P.O. Box 11184 College Station, Texas 77842 Telephone Number: 979-220-5596 Fax Number: 979-690-1676 Minimum Security Facility Sandy Point Road Bryan, Texas Design-Build 7500 sf minimum security facility for Brazos County PAGE 3 The commencement date will be fixed in a notice to proceed. Not applicable Not applicable § 3.3 The Design-Builder shall achieve Substantial Completion of the Work not later than 210 days from the date of commencement, or as follows: Additions and Deletions Report for AIA Document A141 Tm - 2004. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 1 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:46:40 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: ;2 1-7 (341045743) JILT (10% ) per annum Title of the Supplementary and Other Conditions exhibit: None at this time. seGUMent TWO Pages PAGE 10 Title of the Project Criteria exhibit: None at this time. T4 sate § 8.1.4 The Design-Builder's Proposal, dated August 8,_2008 , consists of the following: Title of the Design-Builder's Proposal: Minimum Security Facility Title of the Amendments to Design-Builder's Proposal exhibit: None at this time. Title of the Addenda exhibit: None at this time. Nt,MheF Date None at this time. See Exhibit "C". Title of the Other Documents exhibit: Brazos County Judge Randy Sims R"s Stephen P. Byrne, President Additions and Deletions Report for AIA Document A141 Tm -2004. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 4 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:46:40 on 08/18/20 IT der No.10~ 5561 which expires on 6/2/2009, and is not for resale. User Notes: III A teE I (341045743) 11 than ( % The Owner and Design-Builder shall agree on a mutually acceptable procedure for review and approval of payments and retention for Contractors. .3 Add the Design-Builder's Fee, less retainage of ( The Design-Builder's Fee shall be computed upon the Cost of the Work described in the two preceding sections at the rate stated in Section 4.4.2 or, if the Design-Builder's Fee is stated as a fixed sum in that section, shall be an amount that bears the same ratio to that fixed-sum fee as the Cost of the Work in the two preceding sections bears to a reasonable estimate of the probable Cost of the Work upon its completion; § 5.4.3 Except with the Owner's prior approval, payments for the Work, other than for services provided by design professionals and other consultants retained directly by the Design-Builder, shall be subject to retainage of not less than ( The Owner and Design-Builder shall agree on a mutually acceptable procedure for review and approval of payments and retention for Contractors. PAGE 8 Richard D Faulkner, 6688 N Central Expressway Suite 600, Dallas, Texas 75206 [ X I Arbitration pursuant to Section AAA of Exhibit A, Terms and Conditions Patterson Architects Architect 701 South Texas Ave Bryan, Texas 77803 None at this time None at this time PAGE9 Ms. Pat Howard Brazos County Purchasing Agent 300 East 26" Street Bryan, Texas 77803 Stephen P. Byrne P.O. Box 11184 College Station, Texas 77842 Steve borne@verizon.net None at this time. Additions and Deletions Report for AIA Document A141 TM -2004. Copyright (92004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 3 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:46:40 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: a r- (341045743) [ X I Stipulated Sum in accordance with Section 4.2 below; § 4.2.1 The Stipulated Sum shall be One Million One Hundred Thousand and No/100 Dollars ( $1,100,000.00 subject to additions and deductions as provided in the Design-Build Documents. No alternates are included at this time. None PAGE 4 None No Assumptions or qualifications are made at this time. § 4.4.3.1 The sum of the Cost of the Work and the Design-Builder's Fee is guaranteed by the Design-Builder not to exceed ( subject to additions and deductions by changes in the Work as provided in the Design-Build Documents. Such maximum sum is referred to in the Design-Build Documents as the Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Design-Builder without reimbursement by the Owner. PAGE 5 § 5.1.3 Provided that an Application for Payment is received not later than the last day of month, the Owner shall make payment to the Design-Builder not later than the 10th day of the following month. If an Application for Payment is received by the Owner after the application date fixed above, payment shall be made by the Owner not later than five ( L_) days after the Owner receives the Application for Payment. PAGE 6 .2 Add that portion of the Contract Sum properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the completed construction (or, if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing), less retainage of five ( 5% .2 Add the Design-Builder's Fee, less retainage of ( % The Design-Builder's Fee shall be computed upon the Cost of the Work described in the preceding Section 5.3.2.1 at the rate stated in Section 4.3.2; or if the Design-Builder's Fee is stated as a fixed sum in that section, an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work in the preceding section bears to a reasonable estimate of the probable Cost of the Work upon its completion; PAGE 7 § 5.3.4 Except with the Owner's prior approval, payments for the Work, other than for services provided by design professionals and other consultants retained directly by the Design-Builder, shall be subject to retainage of not less Additions and Deletions Report for AIA Document A141 Tm -2004. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 2 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:46:40 08/ uncyarr No. 0 0358556_1 which expires on 6/2/2009, and is not for resale. User Notes: P ft~ (341045743) Certification of Document's Authenticity AIA@ Document D401 TM -2003 I, Stephen P. Byrne, hereby certify, to the best of my knowledge, information and belief, that I created the attached final document simultaneously with its associated Additions and Deletions Report and this certification at 13:46:40 on 08/18/2008 under Order No. 10003585561 from AIA Contract Documents software and that in preparing the attached final document I made no changes to the original text of AIA® Document A141T 4 - 2004 - Standard Form of Agreement Between Owner and Design-Builder, as published by the AIA in its software, other than those additions and deletions shown in the associated Additions and Deletions Report. (Signed) fir (Title) S// 08 AIA Document D401 Tm - 2003. Copyright ©1992 and 2003 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 1 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:46:40 on 08/18/2008 under Order No. 10003585561 which expires on 6/2/2009, and is not for resale. User Notes: (341045743) lt.. ~8'~e 4.. TM - 2004 Exhibit A I AIA Document A141 Terms and Conditions for the following PROJECT: (Name and location or address) Minimum Security Facility Sandy Point Road Bryan, Texas THE OWNER: (Name and location) Brazos County 300 East 26`b Street Bryan, Texas 77803 THE DESIGN-BUILDER: (Name and location) Greenway Constructors, Inc. - Patterson Architects P.O. Box 11184 College Station, Texas 77842 ADDITIONS AND DELETIONS: The author of this document has added information needed for its completion. The author may also have revised the text of the original AIA standard form. An Additions and Deletions Report that notes added information as well as revisions to the standard form text is available from the author and should be reviewed. A vertical line in the left margin of this document indicates where the author has added necessary information and where the author has added to or deleted from the original AIA text. This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. Consultation with an attorney is also encouraged with respect to professional licensing requirements in the jurisdiction where the Project is located. AIA Document A141 TM - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA' uocumem is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 1 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:48:24 on 08/18/2008 under Order No. 10003585561 which expires on 6/2/2009, and is not for resale. User Notes: I I I 193 (1301595140) TABLE OF ARTICLES A.1 GENERAL PROVISIONS A.2 OWNER A.3 DESIGN-BUILDER A.4 DISPUTE RESOLUTION A.5 AWARD OF CONTRACTS A.6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS A.7 CHANGES IN THE WORK A.8 TIME A.9 PAYMENTS AND COMPLETION A.10 PROTECTION OF PERSONS AND PROPERTY A.11 INSURANCE AND BONDS A.12 UNCOVERING AND CORRECTION OF WORK A.13 MISCELLANEOUS PROVISIONS A.14 TERMINATION OR SUSPENSION OF THE DESIGN-BUILD CONTRACT Init. AIA Document A141TM - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 2 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:48:24 on 08/18/2008 under Order Np 100358556 1 which expires on 6/ 2009, and is not for resale. User Notes: f (J (1301595140) ARTICLE A.1 GENERAL PROVISIONS § AAA BASIC DEFINITIONS § A.1.1.1 THE DESIGN-BUILD DOCUMENTS The Design-Build Documents are identified in Section 1.1 of the Agreement § A.1.1.2 PROJECT CRITERIA The Project Criteria are identified in Section 8.1.3 of the Agreement and may describe the character, scope, relationships, forms, size and appearance of the Project, materials and systems and, in general, their quality levels, performance standards, requirements or criteria, and major equipment layouts. § A.1.1.3 ARCHITECT The Architect is the person lawfully licensed to practice architecture or an entity lawfully practicing architecture identified as such in the Agreement and having a direct contract with the Design-Builder to perform design services for all or a portion of the Work, and is referred to throughout the Design-Build Documents as if singular in number. The term "Architect" means the Architect or the Architect's authorized representative. § A.1.1.4 CONTRACTOR A Contractor is a person or entity, other than the Architect, that has a direct contract with the Design-Builder to perform all or a portion of the construction required in connection with the Work. The term "Contractor" is referred to throughout the Design-Build Documents as if singular in number and means a Contractor or an authorized representative of the Contractor. The term "Contractor" does not include a separate contractor, as defined in Section A.6.1.2, or subcontractors of a separate contractor. § A.1.1.5 SUBCONTRACTOR A Subcontractor is a person or entity who has a direct contract with a Contractor to perform a portion of the construction required in connection with the Work at the site. The term "Subcontractor" is referred to throughout the Design-Build Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. § A.1.1.6 THE WORK The term "Work" means the design, construction and services required by the Design-Build Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Design-Builder to fulfill the Design-Builder's obligations. The Work may constitute the whole or a part of the Project. § A.1.1.7 THE PROJECT The Project is the total design and construction of which the Work performed under the Design-Build Documents may be the whole or a part, and which may include design and construction by the Owner or by separate contractors. § A.1.1.8 NEUTRAL The Neutral is the individual appointed by the parties to decide Claims and disputes pursuant to Section A.4.2.1. § A.1.2 COMPLIANCE WITH APPLICABLE LAWS § A.1.2.1 If the Design-Builder believes that implementation of any instruction received from the Owner would cause a violation of any applicable law, statute, ordinance, building code, rule or regulation, the Design-Builder shall notify the Owner in writing. Neither the Design-Builder nor any Contractor or Architect shall be obligated to perform any act which they believe will violate any applicable law, ordinance, rule or regulation. § A.1.2.2 The Design-Builder shall be entitled to rely on the completeness and accuracy of the information contained in the Project Criteria, but not that such information complies with applicable laws, regulations and codes, which shall be the obligation of the Design-Builder to determine. In the event that a specific requirement of the Project Criteria conflicts with applicable laws, regulations and codes, the Design-Builder shall furnish Work which complies with such laws, regulations and codes. In such case, the Owner shall issue a Change Order to the Design- Builder unless the Design-Builder recognized such non-compliance prior to execution of this Agreement and failed to notify the Owner. Init. AIA Document A141Tm - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 3 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.100015f556 1, which expires on 6/2/2009, and is not for resale. User Notes: 1 35 (1162032265) § A.1.3 CAPITALIZATION § A.1.3.1 Terms capitalized in these Terms and Conditions include those which are (1) specifically defined, (2) the titles of numbered articles and identified references to sections in the document, or (3) the titles of other documents published by the American Institute of Architects. § A.1.4 INTERPRETATION § A.1.4.1 In the interest of brevity, the Design-Build Documents frequently omit modifying words such as "all" and "any" and articles such as "the" and "an," but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. § A.1.4.2 Unless otherwise stated in the Design-Build Documents, words which have well-known technical or construction industry meanings are used in the Design-Build Documents in accordance with such recognized meanings. § A.1.5 EXECUTION OF THE DESIGN-BUILD DOCUMENTS § A.1.5.1 The Design-Build Documents shall be signed by the Owner and Design-Builder. § A.1.5.2 Execution of the Design-Build Contract by the Design-Builder is a representation that the Design-Builder has visited the site, become generally familiar with local conditions under which the Work is to be performed and correlated personal observations with requirements of the Design-Build Documents. § A.1.6 OWNERSHIP AND USE OF DOCUMENTS AND ELECTRONIC DATA § A.1.6.1 Drawings, specifications, and other documents including those in electronic form, prepared by the Architect and furnished by the Design-Builder are Instruments of Service. The Design-Builder, Design-Builder's Architect and other providers of professional services individually shall retain all common law, statutory and other reserved rights, including copyright in those Instruments of Services furnished by them. Drawings, specifications, and other documents and materials and electronic data are furnished for use solely with respect to this Project. § A.1.6.2 Upon execution of the Design-Build Contract, the Design-Builder gtants to the Owner a non-exclusive license to reproduce and use the Instruments of Service solely in connection with the Project, including the Project's further development by the Owner and others retained by the Owner for such purposes, provided that the Owner shall comply with all obligations, including prompt payment of sums when due, under the Design-Build Documents. Subject to the Owner's compliance with such obligations, such license shall extend to those parties retained by the Owner for such purposes, including other design professionals. The Design-Builder shall obtain similar non- exclusive licenses from its design professionals, including the Architect. The Owner shall not otherwise assign or transfer any license herein to another party without prior written agreement of the Design-Builder. Any unauthorized reproduction or use of the Instruments of Service by the Owner or others shall be at the Owner's sole risk and expense without liability to the Design-Builder and its design professionals. Except as provided in Section A.1.6.4, termination of this Agreement prior to completion of the Design-Builder's services to be performed under this Agreement shall terminate this license. § A.1.6.3 Prior to any electronic exchange by the parties of the Instruments of Service or any other documents or materials to be provided by one party to the other, the Owner and the Design-Builder shall agree in writing on the specific conditions governing the format thereof, including any special limitations or licenses not otherwise provided in the Design-Build Documents. § A.1.6.4 If this Agreement is terminated for any reason other than the default of the Owner, each of the Design- Builder's design professionals, including the Architect, shall be contractually required to convey to the Owner a non-exclusive license to use that design professional's Instruments of Service for the completion, use and maintenance of the Project, conditioned upon the Owner's written notice to that design professional of the Owner's assumption of the Design-Builder's contractual duties and obligations to that design professional and payment to that design professional of all amounts due to that design professional and its consultants. If the Owner does not assume the remaining duties and obligations of the Design-Builder to that design professional under this Agreement, then the Owner shall indemnify and hold harmless that design professional from all claims and any expense, including legal fees, which that design professional shall thereafter incur by reason of the Owner's use of such Instruments of Service. The Design-Builder shall incorporate the requirements of this Section A.1.6.4 in all agreements with its design professionals. Init. AIA Document A141 TM' - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 4 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No.1 OQ0358556_1 which expires on 612/2009, and is not for resale. User Notes: 1 (1162032265) § A.1.6.5 Submission or distribution of the Design-Builder's documents to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in derogation of the rights reserved in Section A.1.6.1. ARTICLE A.2 OWNER § A.2.1 GENERAL § A.2.1.1 The Owner is the person or entity identified as such in the Agreement and is referred to throughout the Design-Build Documents as if singular in number. The term "Owner" means the Owner or the Owner's authorized representative. The Owner shall designate in writing a representative who shall have express authority to bind the Owner with respect to all Project matters requiring the Owner's approval or authorization. The Owner shall render decisions in a timely manner and in accordance with the Design-Builder's schedule submitted to the Owner. § A.2.1.2 The Owner shall furnish to the Design-Builder within 15 days after receipt of a written request information necessary and relevant for the Design-Builder to evaluate, give notice of or enforce mechanic's lien rights. Such information shall include a correct statement of the record legal title to the property on which the Project is located, usually referred to as the site, and the Owner's interest therein. § A.2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER § A.2.2.1 Information or services required of the Owner by the Design-Build Documents shall be furnished by the Owner with reasonable promptness. Any other information or services relevant to the Design-Builder's performance of the Work under the Owrier's control shall be furnished by the Owner after receipt from the Design-Builder of a written request for such information or services. § A.2.2.2 The Owner shall be responsible to provide surveys, if not required by the Design-Build Documents to be provided by the Design-Builder, describing physical characteristics, legal limitations, and utility locations for the site of this Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements, and adjoining property and structures; adjacent drainage; rights-of-way, restrictions, easements, encroachments, zoning, deed restriction, boundaries, and contours of the site; locations, dimensions, and necessary data pertaining to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All the information on the survey shall be referenced to a Project benchmark. § A.2.2.3 The Owner shall provide, to the extent available to the Owner and if not required by the Design-Build Documents to be provided by the Design-Builder, the results and reports of prior tests, inspections or investigations conducted for the Project involving structural or mechanical systems, chemical, air and water pollution, hazardous materials or environmental and subsurface conditions and information regarding the presence of pollutants at the Project site. § A.2.2.4 The Owner may obtain independent review of the Design-Builder's design, construction and other documents by a separate architect, engineer, and contractor or cost estimator under contract to or employed by the Owner. Such independent review shall be undertaken at the Owner's expense in a timely manner and shall not delay the orderly progress of the Work. § A.2.2.5 The Owner shall cooperate with the Design-Builder in securing building and other permits, licenses and inspections. The Owner shall not be required to pay the fees for such permits, licenses and inspections unless the cost of such fees is excluded from the responsibility of the Design-Builder under the Design-Build Documents. § A.2.2.6 The services, information, surveys and reports required to be provided by the Owner under Section A.2.2, shall be furnished at the Owner's expense, and the Design-Builder shall be entitled to rely upon the accuracy and completeness thereof, except as otherwise specifically provided in the Design-Build Documents or to the extent the Owner advises the Design-Builder to the contrary in writing. § A.2.2.7 If the Owner observes or otherwise becomes aware of a fault or defect in the Work or non-conformity with the Design-Build Documents, the Owner shall give prompt written notice thereof to the Design-Builder. Init. AIA Document A141 Tm - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA®' Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 5 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 612/2009, and is not for resale. (1162032265) User Notes: § A.2.2.8 The Owner shall, at the request of the Design-Builder, prior to execution of the Design-Build Contract and promptly upon request thereafter, furnish to the Design-Builder reasonable evidence that financial arrangements have been made to fulfill the Owner's obligations under the Design-Build Documents. § A.2.2.9 The Owner shall communicate through the Design-Builder with persons or entities employed or retained by the Design-Builder, unless otherwise directed by the Design-Builder. § A.2.2.10 The Owner shall furnish the services of geotechnical engineers or other consultants, if not required by the Design-Build Documents to be provided by the Design-Builder, for subsoil, air and water conditions when such services are deemed reasonably necessary by the Design-Builder to properly carry out the design services provided by the Design-Builder and the Design-Builder's Architect. Such services may include, but are not limited to, test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and resistivity tests, and necessary operations for anticipating subsoil conditions. The services of geotechnical engineer(s) or other consultants shall include preparation and submission of all appropriate reports and professional recommendations. § A.2.2.11 The Owner shall promptly obtain easements, zoning variances, and legal authorizations regarding site utilization where essential to the execution of the Owner's program. § A.2.3 OWNER REVIEW AND INSPECTION § A.2.3.1 The Owner shall review and approve or take other appropriate action upon the Design-Builder's submittals, including but not limited to design and construction documents, required by the Design-Build Documents, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Design-Build Documents. The Owner's action shall be taken with such reasonable promptness as to cause no delay in the Work or in the activities of the Design-Builder or separate contractors. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details, such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Design-Builder as required by the Design-Build Documents. § A.2.3.2 Upon review of the design documents, construction documents, or other submittals required by the Design- Build Documents, the Owner shall take one of the following actions: .1 Determine that the documents or submittals are in conformance with the Design-Build Documents and approve them. .2 Determine that the documents or submittals are in conformance with the Design-Build Documents but request changes in the documents or submittals which shall be implemented by a Change in the Work. .3 Determine that the documents or submittals are not in conformity with the Design-Build Documents and reject them. .4 Determine that the documents or submittals are not in conformity with the Design-Build Documents, but accept them by implementing a Change in the Work. .5 Determine that the documents or submittals are not in conformity with the Design-Build Documents, but accept them and request changes in the documents or submittals which shall be implemented by a Change in the Work. § A.2.3.3 The Design-Builder shall submit to the Owner for the Owner's approval, pursuant to Section A.2.3.1, any proposed change or deviation to previously approved documents or submittals. The Owner shall review each proposed change or deviation to previously approved documents or submittals which the Design-Builder submits to the Owner for the Owner's approval with reasonable promptness in accordance with Section A.2.3.1 and shall make one of the determinations described in Section A.2.3.2. § A.2.3.4 Notwithstanding the Owner's responsibility under Section A.2.3.2, the Owner's review and approval of the Design-Builder's documents or submittals shall not relieve the Design-Builder of responsibility for compliance with the Design-Build Documents unless a) the Design-Builder has notified the Owner in writing of the deviation prior to approval by the Owner or, b) the Owner has approved a Change in the Work reflecting any deviations from the requirements of the Design-Build Documents. Init. AIA Document A141 TM - 2004 Exhibit A. Copyright @ 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 6 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08118/2008 under Order No.I 0003585561 whit h expires on 6/2/2009, and is not for resale. User Notes: 1 8 O (1162032265) § A.2.3.5 The Owner may visit the site to keep informed about the progress and quality of the portion of the Work completed. However, the Owner shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. Visits by the Owner shall not be construed to create an obligation on the part of the Owner to make on-site inspections to check the quantity or quality of the Work. The Owner shall neither have control over or charge of, nor be responsible for, the construction means, methods, techniques, sequences or procedures, or for the safety precautions and programs in connection with the Work, since these are solely the Design-Builder's rights and responsibilities under the Design-Build Documents, except as provided in Section A.3.3.7. § A.2.3.6 The Owner shall not be responsible for the Design-Builder's failure to perform the Work in accordance with the requirements of the Design-Build Documents. The Owner shall not have control over or charge of and will not be responsible for acts or omissions of the Design-Builder, Architect, Contractors, or their agents or employees, or any other persons or entities performing portions of the Work for the Design-Builder. § A.2.3.7 The Owner may reject Work that does not conform to the Design-Build Documents. Whenever the Owner considers it necessary or advisable, the Owner shall have authority to require inspection or testing of the Work in accordance with Section A.13.5.2, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Owner nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Owner to the Design-Builder, the Architect, Contractors, material and equipment suppliers, their agents or employees, or other persons or entities performing portions of the Work. § A.2.3.8 The Owner may appoint an on-site project representative to observe the Work and to have such other responsibilities as the Owner and the Design-Builder agree to in writing. § A.2.3.9 The Owner shall conduct inspections to determine the date or dates of Substantial Completion and the date of final completion. § A.2.4 OWNER'S RIGHT TO STOP WORK § A.2.4.1 If the Design-Builder fails to correct Work which is not in accordance with the requirements of the Design- Build Documents as required by Section A.12.2 or persistently fails to carry out Work in accordance with the Design-Build Documents, the Owner may issue a written order to the Design-Builder to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, the right of the Owner to stop the Work shall not give rise to a duty on the part of the Owner to exercise this right for the benefit of the Design-Builder or any other person or entity, except to the extent required by Section A.6.1.3. § A.2.5 OWNER'S RIGHT TO CARRY OUT THE WORK § A.2.5.1 If the Design-Builder defaults or neglects to carry out the Work in accordance with the Design-Build Documents and fails within a seven-day period after receipt of written notice from the Owner to commence and continue correction of such default or neglect with diligence and promptness, the Owner may after such seven-day period give the Design-Builder a second written notice to correct such deficiencies within a three-day period. If the Design-Builder within such three-day period after receipt of such second notice fails to commence and continue to correct any deficiencies, the Owner may, without prejudice to other remedies the Owner may have, correct such deficiencies. In such case, an appropriate Change Order shall be issued deducting from payments then or thereafter due the Design-Builder the reasonable cost of correcting such deficiencies. If payments due the Design-Builder are not sufficient to cover such amounts, the Design-Builder shall pay the difference to the Owner. ARTICLE A.3 DESIGN-BUILDER § A.3.1 GENERAL § A.3.1.1 The Design-Builder is the person or entity identified as such in the Agreement and is referred to throughout the Design-Build Documents as if singular in number. The Design-Builder may be an architect or other design professional, a construction contractor, a real estate developer or any other person or entity legally permitted to do business as a design-builder in the location where the Project is located. The term "Design-Builder" means the Design-Builder or the Design-Builder's authorized representative. The Design-Builder's representative is authorized to act on the Design-Builder's behalf with respect to the Project. § A.3.1.2 The Design-Builder shall perform the Work in accordance with the Design-Build Documents. Init. AIA Document A141TM - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 7 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No. 10003585561 which expires on 6/2/2009, and is not for resale. User Notes: I O (1162032265) § A.3.2 DESIGN SERVICES AND RESPONSIBILITIES § A.3.2.1 When applicable law requires that services be performed by licensed professionals, the Design-Builder shall provide those services through the performance of qualified persons or entities duly licensed to practice their professions. The Owner understands and agrees that the services performed by the Design-Builder's Architect and the Design-Builder's other design professionals and consultants are undertaken and performed in the sole interest of and for the exclusive benefit of the Design-Builder. § A.3.2.2 The agreements between the Design-Builder and Architect or other design professionals identified in the Agreement, and in any subsequent Modifications, shall be in writing. These agreements, including services and financial arrangements with respect to this Project, shall be promptly and fully disclosed to the Owner upon the Owner's written request. § A.3.2.3 The Design-Builder shall be responsible to the Owner for acts and omissions of the Design-Builder's employees, Architect, Contractors, Subcontractors and their agents and employees, and other persons or entities, including the Architect and other design professionals, performing any portion of the Design-Builder's obligations under the Design-Build Documents. § A.3.2.4 The Design-Builder shall carefully study and compare the Design-Build Documents, materials and other information provided by the Owner pursuant to Section A.2.2, shall take field measurements of any existing conditions related to the Work, shall observe any conditions at the site affecting the Work, and report promptly to the Owner any errors, inconsistencies or omissions discovered. § A.3.2.5 The Design-Builder shall provide to the Owner for Owner's written approval design documents sufficient to establish the size, quality and character of the Project; its architectural, structural, mechanical and electrical systems; and the materials and such other elements of the Project to the extent required by the Design-Build Documents. Deviations, if any, from the Design-Build Documents shall be disclosed in writing. § A.3.2.6 Upon the Owner's written approval of the design documents submitted by the Design-Builder, the Design- Builder shall provide construction documents for review and written approval by the Owner. The construction documents shall set forth in detail the requirements for construction of the Project. The construction documents shall include drawings and specifications that establish the quality levels of materials and systems required. Deviations, if any, from the Design-Build Documents shall be disclosed in writing. Construction documents may include drawings, specifications, and other documents and electronic data setting forth in detail the requirements for construction of the Work, and shall: .1 be consistent with the approved design documents; .2 provide information for the use of those in the building trades; and .3 include documents customarily required for regulatory agency approvals. § A.3.2.7 The Design-Builder shall meet with the Owner periodically to review progress of the design and construction documents. § A.3.2.8 Upon the Owner's written approval of construction documents, the Design-Builder, with the assistance of the Owner, shall prepare and file documents required to obtain necessary approvals of governmental authorities having jurisdiction over the Project. § A.3.2.9 The Design-Builder shall obtain from each of the Design-Builder's professionals and furnish to the Owner certifications with respect to the documents and services provided by such professionals (a) that, to the best of their knowledge, information and belief, the documents or services to which such certifications relate (i) are consistent with the Project Criteria set forth in the Design-Build Documents, except to the extent specifically identified in such certificate, (ii) comply with applicable professional practice standards, and (iii) comply with applicable laws, ordinances, codes, rules and regulations governing the design of the Project; and (b) that the Owner and its consultants shall be entitled to rely upon the accuracy of the representations and statements contained in such certifications. § A.3.2.10 If the Owner requests the Design-Builder, the Architect or the Design-Builder's other design professionals to execute certificates other than those required by Section A.3.2.9, the proposed language of such certificates shall be submitted to the Design-Builder, or the Architect and such design professionals through the Design-Builder, for Init. AIA Document A141 TM - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 8 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.10003t58556 1 which expires o 6/2/2009, and is not for resale. User Notes: ~L 91 k 1, Q- (1162032265) review and negotiation at least 14 days prior to the requested dates of execution. Neither the Design-Builder, the Architect nor such other design professionals shall be required to execute certificates that would require knowledge, services or responsibilities beyond the scope of their respective agreements with the Owner or Design-Builder. § A.3.3 CONSTRUCTION § A.3.3.1 The Design-Builder shall perform no construction Work prior to the Owner's review and approval of the construction documents. The Design-Builder shall perform no portion of the Work for which the Design-Build Documents require the Owner's review of submittals, such as Shop Drawings, Product Data and Samples, until the Owner has approved each submittal. § A.3.3.2 The construction Work shall be in accordance with approved submittals, except that the Design-Builder shall not be relieved of responsibility for deviations from requirements of the Design-Build Documents by the Owner's approval of design and construction documents or other submittals such as Shop Drawings, Product Data, Samples or other submittals unless the Design-Builder has specifically informed the Owner in writing of such deviation at the time of submittal and (1) the Owner has given written approval to the specific deviation as a minor change in the Work, or (2) a Change Order or Construction Change Directive has been issued authorizing the deviation. The Design-Builder shall not be relieved of responsibility for errors or omissions in design and construction documents or other submittals such as Shop Drawings, Product Data, Samples or other submittals by the Owner's approval thereof. § A.3.3.3 The Design-Builder shall direct specific attention, in writing or on resubmitted design and construction documents or other submittals such as Shop Drawings, Product Data, Samples or similar submittals, to revisions other than those requested by the Owner on previous submittals. In the absence of such written notice, the Owner's approval of a resubmission shall not apply to such revisions. § A.3.3.4 When the Design-Build Documents require that a Contractor provide professional design services or certifications related to systems, materials or equipment, or when the Design-Builder in its discretion provides such design services or certifications through a Contractor, the Design-Builder shall cause professional design services or certifications to be provided by a properly licensed design professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professionals, if prepared by others, shall bear such design professional's written approval. The Owner shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals. § A.3.3.5 The Design-Builder shall be solely responsible for and have control over all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Design-Build Documents. § A.3.3.6 The Design-Builder shall keep the Owner informed of the progress and quality of the Work. § A.3.3.7 The Design-Builder shall be responsible for the supervision and direction of the Work, using the Design- Builder's best skill and attention. If the Design-Build Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures, the Design-Builder shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences or procedures. If the Design-Builder determines that such means, methods, techniques, sequences or procedures may not be safe, the Design-Builder shall give timely written notice to the Owner and shall not proceed with that portion of the Work without further written instructions from the Owner. If the Design-Builder is then instructed to proceed with the required means, methods, techniques, sequences or procedures without acceptance of changes proposed by the Design-Builder, the Owner shall be solely responsible for any resulting loss or damage. § A.3.3.8 The Design-Builder shall be responsible for inspection of portions of Work already performed to determine that such portions are in proper condition to receive subsequent Work. AIA Document A141 M - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 9 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: (1162032265) J 1 ra ~ ~f § A.3.4 LABOR AND MATERIALS § A.3.4.1 Unless otherwise provided in the Design-Build Documents, the Design-Builder shall provide or cause to be provided and shall pay for design services, labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. § A.3.4.2 When a material is specified in the Design-Build Documents, the Design-Builder may make substitutions only with the consent of the Owner and, if appropriate, in accordance with a Change Order. § A.3.4.3 The Design-Builder shall enforce strict discipline and good order among the Design-Builder's employees and other persons carrying out the Design-Build Contract. The Design-Builder shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. § A.3.5 WARRANTY § A.3.5.1 The Design-Builder warrants to the Owner that materials and equipment furnished under the Design-Build Documents will be of good quality and new unless otherwise required or permitted by the Design-Build Documents, that the Work will be free from defects not inherent in the quality required or permitted by law or otherwise, and that the Work will conform to the requirements of the Design-Build Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. The Design-Builder's warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the Design-Builder, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. If required by the Owner, the Design-Builder shall furnish satisfactory evidence as to the kind and quality of materials and equipment. § A.3.6 TAXES § A.3.6.1 The Design-Builder shall pay all sales, consumer, use and similar taxes for the Work provided by the Design-Builder which had been legally enacted on the date of the Agreement, whether or not yet effective or merely scheduled to go into effect. § A.3.7 PERMITS, FEES AND NOTICES § A.3.7.1 The Design-Builder shall secure and pay for building and other permits and governmental fees, licenses and inspections necessary for the proper execution and completion of the Work which are customarily secured after execution of the Design-Build Contract and which were legally required on the date the Owner accepted the Design- Builder's proposal. § A.3.7.2 The Design-Builder shall comply with and give notices required by laws, ordinances, rules, regulations and lawful orders of public authorities relating to the Project. § A.3.7.3 It is the Design-Builder's responsibility to ascertain that the Work is in accordance with applicable laws, ordinances, codes, rules and regulations. § A.3.7.4 If the Design-Builder performs Work contrary to applicable laws, ordinances, codes, rules and regulations, the Design-Builder shall assume responsibility for such Work and shall bear the costs attributable to correction. § A.3.8 ALLOWANCES § A.3.8.1 The Design-Builder shall include in the Contract Sum all allowances stated in the Design-Build Documents. Items covered by allowances shall be supplied for such amounts and by such persons or entities as the Owner may direct, but the Design-Builder shall not be required to employ persons or entities to which the Design- Builder has reasonable objection. § A.3.8.2 Unless otherwise provided in the Design-Build Documents: .1 allowances shall cover the cost to the Design-Builder of materials and equipment delivered at the site and all required taxes, less applicable trade discounts; .2 Design-Builder's costs for unloading and handling at the site, labor, installation costs, overhead, profit and other expenses contemplated for stated allowance amounts shall be included in the Contract Sum but not in the allowances; and Init. AIA Document A141TM - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 10 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556 1 which,expire on 6/2/2009, and is not for resale. User Notes: 'a e (1162032265) .3 whenever costs are more than or less than allowances, the Contract Sum shall be adjusted accordingly by Change Order. The amount of the Change Order shall reflect (1) the difference between actual costs and the allowances under Section A.3.8.2.1 and (2) changes in Design-Builder's costs under Section A.3.8.2.2. § A.3.8.3 Materials and equipment under an allowance shall be selected by the Owner in sufficient time to avoid delay in the Work. § A.3.9 DESIGN-BUILDER'S SCHEDULE § A.3.9.1 The Design-Builder, promptly after execution of the Design-Build Contract, shall prepare and submit for the Owner's information the Design-Builder's schedule for the Work. The schedule shall not exceed time limits and shall be in such detail as required under the Design-Build Documents, shall be revised at appropriate intervals as required by the conditions of the Work and Project, shall be related to the entire Project to the extent required by the Design-Build Documents, shall provide for expeditious and practicable execution of the Work and shall include allowances for periods of time required for the Owner's review and for approval of submissions by authorities having jurisdiction over the Project. § A.3.9.2 The Design-Builder shall prepare and keep current a schedule of submittals required by the Design-Build Documents. § A.3.9.3 The Design-Builder shall perform the Work in general accordance with the most recent schedules submitted to the Owner. § A.3.10 DOCUMENTS AND SAMPLES AT THE SITE § A.3.10.1 The Design-Builder shall maintain at the site for the Owner one record copy of the drawings, specifications, addenda, Change Orders and other Modifications, in good order and marked currently to record field changes and selections made during construction, and one record copy of approved Shop Drawings, Product Data, Samples and similar required submittals. These shall be delivered to the Owner upon completion of the Work. § A.3.11 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES § A.3.11.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work by the Design-Builder or a Contractor, Subcontractor, manufacturer, supplier or distributor to illustrate some portion of the Work. § A.3.11.2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other information furnished by the Design-Builder to illustrate materials or equipment for some portion of the Work. § A.3.11.3 Samples are physical examples that illustrate materials, equipment or workmanship and establish standards by which the Work will be judged. § A.3.11.4 Shop Drawings, Product Data, Samples and similar submittals are not Design-Build Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required by the Design-Build Documents the way by which the Design-Builder proposes to conform to the Design-Build Documents. § A.3.11.5 The Design-Builder shall review for compliance with the Design-Build Documents and approve and submit to the Owner only those Shop Drawings, Product Data, Samples and similar submittals required by the Design-Build Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the Owner or of separate contractors. § A.3.11.6 By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the Design- Builder represents that the Design-Builder has determined and verified materials, field measurements and field construction criteria related thereto, or will do so, and has checked and coordinated the information contained within such submittals with the requirements of the Work and of the Design-Build Documents. AIA Document All 41 TM - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA- uocumeni is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, Init. may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No. 1000358556F1 w~+hi hex ues on 612/2009, and is not for resale. (1162032265) User Notes: a 0 L _LL @ - § A.3.12 USE OF SITE § A.3.12.1 The Design-Builder shall confine operations at the site to areas permitted by law, ordinances, permits and the Design-Build Documents, and shall not unreasonably encumber the site with materials or equipment. § A.3.13 CUTTING AND PATCHING § A.3.13.1 The Design-Builder shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly. § A.113.2 The Design-Builder shall not damage or endanger a portion of the Work or fully or partially completed construction of the Owner or separate contractors by cutting, patching or otherwise altering such construction or by excavation. The Design-Builder shall not cut or otherwise alter such construction by the Owner or a separate contractor except with written consent of the Owner and of such separate contractor; such consent shall not be unreasonably withheld. The Design-Builder shall not unreasonably withhold from the Owner or a separate contractor the Design-Builder's consent to cutting or otherwise altering the Work. § A.3.14 CLEANING UP § A.3.14.1 The Design-Builder shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Design-Build Contract. At completion of the Work, the Design- Builder shall remove from and about the Project waste materials, rubbish, the Design-Builder's tools, construction equipment, machinery and surplus materials. § A.3.14.2 If the Design-Builder fails to clean up as provided in the Design-Build Documents, the Owner may do so and the cost thereof shall be charged to the Design-Builder. § A.3.15 ACCESS TO WORK § A.3.15.1 The Design-Builder shall provide the Owner access to the Work in preparation and progress wherever located. § A.3.16 ROYALTIES, PATENTS AND COPYRIGHTS § A.3.16.1 The Design-Builder shall pay all royalties and license fees. The Design-Builder shall defend suits or claims for infringement of copyrights and patent rights and shall hold the Owner harmless from loss on account thereof, but shall not be responsible for such defense or loss when a particular design, process or product of a particular manufacturer or manufacturers is required or where the copyright violations are contained in drawings, specifications or other documents prepared by or furnished to the Design-Builder by the Owner. However, if the Design-Builder has reason to believe that the required design, process or product is an infringement of a copyright or a patent, the Design-Builder shall be responsible for such loss unless such information is promptly furnished to the Owner. § A.3.17 INDEMNIFICATION § A.3.17.1 To the fullest extent permitted by law, the Design-Builder shall indemnify and hold harmless the Owner, Owner's consultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death or to injury to or destruction of tangible property other than the Work itself, but only to the extent caused by the negligent acts or omissions of the Design-Builder, Architect, a Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge or reduce other rights or obligations of indemnity that would otherwise exist as to a party or person described in this Section A.3.17. § A.3.17.2 In claims against any person or entity indemnified under this Section A.3.17 by an employee of the Design-Builder, the Architect, a Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under Section A.3.17.1 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Design-Builder, the Architect or a Contractor or a Subcontractor under workers' compensation acts, disability benefit acts or other employee benefit acts. Init. AIA Document A141TM - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 12 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.10003 56 1Iw is .exWf~ on/ 2009, and is not for resale. User Notes: ~°9~ ~ ;t (1162032265) ARTICLE A.4 DISPUTE RESOLUTION § AAA CLAIMS AND DISPUTES § A.4.1.1 Definition. A Claim is a demand or assertion by one of the parties seeking, as a matter of right, adjustment or interpretation of Design-Build Contract terms, payment of money, extension of time or other relief with respect to the terms of the Design-Build Contract. The term "Claim" also includes other disputes and matters in question between the Owner and Design-Builder arising out of or relating to the Design-Build Contract. Claims must be initiated by written notice. The responsibility to substantiate Claims shall rest with the party making the Claim. § A.4.1.2 Time Limits on Claims. Claims by either party must be initiated within 21 days after occurrence of the event giving rise to such Claim or within 21 days after the claimant first recognizes the condition giving rise to the Claim, whichever is later. Claims must be initiated by written notice to the other party. § A.4.1.3 Continuing Performance. Pending final resolution of a Claim, except as otherwise agreed in writing or as provided in Section A.9.7.1 and Article A.14, the Design-Builder shall proceed diligently with performance of the Design-Build Contract and the Owner shall continue to make payments in accordance with the Design-Build Documents. § A.4.1.4 Claims for Concealed or Unknown Conditions. If conditions are encountered at the site which are (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Design- Build Documents or (2) unknown physical conditions of an unusual nature which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Design-Build Documents, then the observing party shall give notice to the other party promptly before conditions are disturbed and in no event later than 21 days after first observance of the conditions. The Owner shall promptly investigate such conditions and, if they differ materially and cause an increase or decrease in the Design- Builder's cost of, or time required for, performance of any part of the Work, shall negotiate with the Design-Builder an equitable adjustment in the Contract Sum or Contract Time, or both. If the Owner determines that the conditions at the site are not materially different from those indicated in the Design-Build Documents and that no change in the terms of the Design-Build Contract is justified, the Owner shall so notify the Design-Builder in writing, stating the reasons. Claims by the Design-Builder in opposition to such determination must be made within 21 days after the Owner has given notice of the decision. If the conditions encountered are materially different, the Contract Sum and Contract Time shall be equitably adjusted, but if the Owner and Design-Builder cannot agree on an adjustment in the Contract Sum or Contract Time, the adjustment shall proceed pursuant to Section A.4.2. § A.4.1.5 Claims for Additional Cost. If the Design-Builder wishes to make Claim for an increase in the Contract Sum, written notice as provided herein shall be given before proceeding to execute the Work. Prior notice is not required for Claims relating to an emergency endangering life or property arising under Section A. 10.6. § A.4.1.6 If the Design-Builder believes additional cost is involved for reasons including but not limited to (1) an order by the Owner to stop the Work where the Design-Builder was not at fault, (2) a written order for the Work issued by the Owner, (3) failure of payment by the Owner, (4) termination of the Design-Build Contract by the Owner, (5) Owner's suspension or (6) other reasonable grounds, Claim shall be filed in accordance with this Section A.4.1. § A.4.1.7 Claims for Additional Time § A.4.1.7.1 If the Design-Builder wishes to make Claim for an increase in the Contract Time, written notice as provided herein shall be given. The Design-Builder's Claim shall include an estimate of the time and its effect on the progress of the Work. In the case of a continuing delay, only one Claim is necessary. § A.4.1.7.2 If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time, could not have been reasonably anticipated and had an adverse effect on the scheduled construction. § A.4.1.8 Injury or Damage to Person or Property. If either party to the Design-Build Contract suffers injury or damage to person or property because of an act or omission of the other party or of others for whose acts such party is legally responsible, written notice of such injury or damage, whether or not insured, shall be given to the other party within a reasonable time not exceeding 21 days after discovery. The notice shall provide sufficient detail to enable the other party to investigate the matter. AIA Document A141Tm - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 13 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.10003585.56_1 which exp' es on 6/2/2009, and is not for resale. User Notes: (1162032265) § A.4.1.9 If unit prices are stated in the Design-Build Documents or subsequently agreed upon, and if quantities originally contemplated are materially changed in a proposed Change Order or Construction Change Directive so that application of such unit prices to quantities of Work proposed will cause substantial inequity to the Owner or Design-Builder, the applicable unit prices shall be equitably adjusted. § A.4.1.10 Claims for Consequential Damages. Design-Builder and Owner waive Claims against each other for consequential damages arising out of or relating to the Design-Build Contract. This mutual waiver includes: .1 damages incurred by the Owner for rental expenses, for losses of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons; and .2 damages incurred by the Design-Builder for principal office expenses including the compensation of personnel stationed there, for losses of financing, business and reputation, and for loss of profit except anticipated profit arising directly from the Work. This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination in accordance with Article A.14. Nothing contained in this Section A.4.1.10 shall be deemed to preclude an award of liquidated direct damages, when applicable, in accordance with the requirements of the Design-Build Documents. § A.4.1.11 If the enactment or revision of codes, laws or regulations or official interpretations which govern the Project cause an increase or decrease of the Design-Builder's cost of, or time required for, performance of the Work, the Design-Builder shall be entitled to an equitable adjustment in Contract Sum or Contract Time. If the Owner and Design-Builder cannot agree upon an adjustment in the Contract Sum or Contract Time, the Design-Builder shall submit a Claim pursuant to Section A.4.1. § A.4.2 RESOLUTION OF CLAIMS AND DISPUTES § A.4.2.1 Decision by Neutral. If the parties have identified a Neutral in Section 6.1 of the Agreement or elsewhere in the Design-Build Documents, then Claims, excluding those arising under Sections A.10.3 through A.10.5, shall be referred initially to the Neutral for decision. An initial decision by the Neutral shall be required as a condition precedent to mediation of all Claims between the Owner and Design-Builder arising prior to the date final payment is due, unless 30 days have passed after the Claim has been referred to the Neutral with no decision having been rendered by the Neutral. Unless the Neutral and all affected parties agree, the Neutral will not decide disputes between the Design-Builder and persons or entities other than the Owner. § A.4.2.2 Decision by Owner. If the parties have not identified a Neutral in Section 6.1 of the Agreement or elsewhere in the Design-Build Documents then, except for those claims arising under Sections A.10.3 and A.10.5, the Owner shall provide an initial decision. An initial decision by the Owner shall be required as a condition precedent to mediation of all Claims between the Owner and Design-Builder arising prior to the date final payment is due, unless 30 days have passed after the Claim has been referred to the Owner with no decision having been rendered by the Owner. § A.4.2.3 The initial decision pursuant to Sections A.4.2.1 and A.4.2.2 shall be in writing, shall state the reasons therefore and shall notify the parties of any change in the Contract Sum or Contract Time or both. The initial decision shall be final and binding on the parties but subject first to mediation under Section A.4.3 and thereafter to such other dispute resolution methods as provided in Section 6.2 of the Agreement or elsewhere in the Design-Build Documents. § A.4.2.4 In the event of a Claim against the Design-Builder, the Owner may, but is not obligated to, notify the surety, if any, of the nature and amount of the Claim. If the Claim relates to a possibility of a Design-Builder's default, the Owner may, but is not obligated to, notify the surety and request the surety's assistance in resolving the controversy- § A.4.2.5 § A.4.3 MEDIATION § A.4.3.1 Any Claim arising out of or related to the Design-Build Contract, except those waived as provided for in Sections A.4.1.10, A.9.10.4 and A.9.10.5, shall, after initial decision of the Claim or 30 days after submission of the Init. AIA Document At 41 T"' - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 14 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.10003585 which expires 1r09, and is not for resale. User Notes: a (1162032265) Claim for initial decision, be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable or other binding dispute resolution proceedings by either party. § A.4.3.2 The parties shall endeavor to resolve their Claims by mediation which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect at the time of the mediation. Request for mediation shall be filed in writing with the other party to the Design-Build Contract and with the National Mediation Academy. The request may be made concurrently with the filing of a demand for arbitration or other binding dispute resolution proceedings but, in such event, mediation shall proceed in advance thereof or of legal or equitable proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. § A.4.3.3 The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. § AAA ARBITRATION § A.4.4.1 Claims, except those waived as provided for in Sections A.4.1.10, A.9.10.4 and A.9.10.5, for which initial decisions have not become final and binding, and which have not been resolved by mediation but which are subject to arbitration pursuant to Sections 6.2 and 6.3 of the Agreement or elsewhere in the Design-Build Documents, shall be decided by arbitration which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect at the time of the arbitration. The demand for arbitration shall be filed in writing with the other party to the Design-Build Contract and with the National Arbitration Institute of the National Mediation Academy. § A.4.4.2 A demand for arbitration may be made no earlier than concurrently with the filing of a request for mediation, but in no event shall it be made after the date when institution of legal or equitable proceedings based on such Claim would be barred by the applicable statute of limitations as determined pursuant to Section A.13.6. § A.4.4.3 An arbitration pursuant to this Section A.4.4 may be joined with an arbitration involving common issues of law or fact between the Owner or Design-Builder and any person or entity with whom the Owner or Design-Builder has a contractual obligation to arbitrate disputes which does not prohibit consolidation or joinder. No other arbitration arising out of or relating to the Design-Build Contract shall include, by consolidation, joinder or in any other manner, an additional person or entity not a party to the Design-Build Contract or not a party to an agreement with the Owner or Design-Builder, except by written consent containing a specific reference to the Design-Build Contract signed by the Owner and Design-Builder and any other person or entities sought to be joined. Consent to arbitration involving an additional person or entity shall not constitute consent to arbitration of any claim, dispute or other matter in question not described in the written consent or with a person or entity not named or described therein. The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity duly consented to by the parties to the Agreement shall be specifically enforceable in accordance with applicable law in any court having jurisdiction thereof. § A.4.4.4 Claims and Timely Assertion of Claims. The party filing a notice of demand for arbitration must assert in the demand all Claims then known to that party on which arbitration is permitted to be demanded. § A.4.4.5 Judgment on Final Award. The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. ARTICLE A.5 AWARD OF CONTRACTS § A.5.1 Unless otherwise stated in the Design-Build Documents or the bidding or proposal requirements, the Design- Builder, as soon as practicable after award of the Design-Build Contract, shall furnish in writing to the Owner the names of additional persons or entities not originally included in the Design-Builder's proposal or in substitution of a person or entity (including those who are to furnish design services or materials or equipment fabricated to a special design) proposed for each principal portion of the Work. The Owner will promptly reply to the Design- Builder in writing stating whether or not the Owner has reasonable objection to any such proposed additional person or entity. Failure of the Owner to reply promptly shall constitute notice of no reasonable objection. Init. AIA Document A141 TM - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 15 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: q7 (1162032265) § A.5.2 The Design-Builder shall not contract with a proposed person or entity to whom which the Owner has made reasonable and timely objection. The Design-Builder shall not be required to contract with anyone to whom the Design-Builder has made reasonable objection. § A.5.3 If the Owner has reasonable objection to a person or entity proposed by the Design-Builder, the Design- Builder shall propose another to whom the Owner has no reasonable objection. If the proposed but rejected additional person or entity was reasonably capable of performing the Work, the Contract Sum and Contract Time shall be increased or decreased by the difference, if any, occasioned by such change, and an appropriate Change Order shall be issued before commencement of the substitute person's or entity's Work. However, no increase in the Contract Sum or Contract Time shall be allowed for such change unless the Design-Builder has acted promptly and responsively in submitting names as required. § A.5.4 The Design-Builder shall not change a person or entity previously selected if the Owner makes reasonable objection to such substitute. § A.5.5 CONTINGENT ASSIGNMENT OF CONTRACTS § A.5.5.1 Each agreement for a portion of the Work is assigned by the Design-Builder to the Owner provided that: .1 assignment is effective only after termination of the Design-Build Contract by the Owner for cause pursuant to Section A.14.2 and only for those agreements which the Owner accepts by notifying the contractor in writing; and .2 assignment is subject to the prior rights of the surety, if any, obligated under bond relating to the Design-Build Contract. § A.5.5.2 Upon such assignment, if the Work has been suspended for more than 30 days, the Contractor's compensation shall be equitably adjusted for increases in cost resulting from the suspension. ARTICLE A.6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS § A.6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS § A.6.1.1 The Owner reserves the right to perform construction or operations related to the Project with the Owner's own forces and to award separate contracts in connection with other portions of the Project or other construction or operations on the site. The Design-Builder shall cooperate with the Owner and separate contractors whose work might interfere with the Design-Builder's Work. If the Design-Builder claims that delay or additional cost is involved because of such action by the Owner, the Design-Builder shall make such Claim as provided in Section A.4.1. § A.6.1.2 The term "separate contractor" shall mean any contractor retained by the Owner pursuant to Section A.6.1.1. § A.6.1.3 The Owner shall provide for coordination of the activities of the Owner's own forces and of each separate contractor with the work of the Design-Builder, who shall cooperate with them. The Design-Builder shall participate with other separate contractors and the Owner in reviewing their construction schedules when directed to do so. The Design-Builder shall make any revisions to the construction schedule deemed necessary after a joint review and mutual agreement. The construction schedules shall then constitute the schedules to be used by the Design-Builder, separate contractors and the Owner until subsequently revised. § A.6.2 MUTUAL RESPONSIBILITY § A.6.2.1 The Design-Builder shall afford the Owner and separate contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities and shall connect and coordinate the Design-Builder's construction and operations with theirs as required by the Design-Build Documents. § A.6.2.2 If part of the Design-Builder's Work depends for proper execution or results upon design, construction or operations by the Owner or a separate contractor, the Design-Builder shall, prior to proceeding with that portion of the Work, promptly report to the Owner apparent discrepancies or defects in such other construction that would render it unsuitable for such proper execution and results. Failure of the Design-Builder so to report shall constitute an acknowledgment that the Owner's or separate contractor's completed or partially completed construction is fit and proper to receive the Design-Builder's Work, except as to defects not then reasonably discoverable. Init. AIA Document A141TM -2004 Exhibit A. Copyright @ 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA:' Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 16 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1000.358556_1 which a p' n 6/2/2009, and is not for resale. User Notes: (1162032265) i~~ n, w.y. ~p_- § A.6.2.3 The Owner shall be reimbursed by the Design-Builder for costs incurred by the Owner which are payable to a separate contractor because of delays, improperly timed activities or defective construction of the Design- Builder. The Owner shall be responsible to the Design-Builder for costs incurred by the Design-Builder because of delays, improperly timed activities, damage to the Work or defective construction of a separate contractor. § A.6.2.4 The Design-Builder shall promptly remedy damage wrongfully caused by the Design-Builder to completed or partially completed construction or to property of the Owner or separate contractors. § A.6.2.5 The Owner and each separate contractor shall have the same responsibilities for cutting and patching as are described in Section A.3.13. § A.6.3 OWNER'S RIGHT TO CLEAN UP § A.6.3.1 If a dispute arises among the Design-Builder, separate contractors and the Owner as to the responsibility under their respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish, the Owner may clean up and the Owner shall allocate the cost among those responsible. ARTICLE A.7 CHANGES IN THE WORK § A.7.1 GENERAL § A.7.1.1 Changes in the Work may be accomplished after execution of the Design-Build Contract, and without invalidating the Design-Build Contract, by Change Order or Construction Change Directive, subject to the limitations stated in this Article A.7 and elsewhere in the Design-Build Documents. § A.7.1.2 A Change Order shall be based upon agreement between the Owner and Design-Builder. A Construction Change Directive may be issued by the Owner with or without agreement by the Design-Builder. § A.7.1.3 Changes in the Work shall be performed under applicable provisions of the Design-Build Documents, and the Design-Builder shall proceed promptly, unless otherwise provided in the Change Order or Construction Change Directive. § A.7.2 CHANGE ORDERS § A.7.2.1 A Change Order is a written instrument signed by the Owner and Design-Builder stating their agreement upon all of the following: .1 a change in the Work; .2 the amount of the adjustment, if any, in the Contract Sum; and .3 the extent of the adjustment, if any, in the Contract Time. § A.7.2.2 If the Owner requests a proposal for a change in the Work from the Design-Builder and subsequently elects not to proceed with the change, a Change Order shall be issued to reimburse the Design-Builder for any costs incurred for estimating services, design services or preparation of proposed revisions to the Design-Build Documents. § A.7.2.3 Methods used in determining adjustments to the Contract Sum may include those listed in Section A.7.3.3. § A.7.3 CONSTRUCTION CHANGE DIRECTIVES § A.7.3.1 A Construction Change Directive is a written order signed by the Owner directing a change in the Work prior to agreement on adjustment, if any, in the Contract Sum or Contract Time, or both. The Owner may by Construction Change Directive, without invalidating the Design-Build Contract, order changes in the Work within the general scope of the Design-Build Documents consisting of additions, deletions or other revisions, the Contract Sum and Contract Time being adjusted accordingly. § A.7.3.2 A Construction Change Directive shall be used in the absence of total agreement on the terms of a Change Order. § A.7.3.3 If the Construction Change Directive provides for an adjustment to the Contract Sum, the adjustment shall be based on one of the following methods: .1 mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation; AIA Document A141"m - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 17 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No. 10003585561 which expires on 6/2/2009, and is not for resale. User Notes: (1162032265) ~c .2 unit prices stated in the Design-Build Documents or subsequently agreed upon, or equitably adjusted as provided in Section A.4.1.9; .3 cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or percentage fee; or .4 as provided in Section A.7.3.6. § A.7.3.4 Upon receipt of a Construction Change Directive, the Design-Builder shall promptly proceed with the change in the Work involved and advise the Owner of the Design-Builder's agreement or disagreement with the method, if any, provided in the Construction Change Directive for determining the proposed adjustment in the Contract Sum or Contract Time. § A.7.3.5 A Construction Change Directive signed by the Design-Builder indicates the agreement of the Design- Builder therewith, including adjustment in Contract Sum and Contract Time or the method for determining them. Such agreement shall be effective immediately and shall be recorded as a Change Order. § A.7.3.6 If the Design-Builder does not respond promptly or disagrees with the method for adjustment in the Contract Sum, the method and the adjustment shall be determined by the Owner on the basis of reasonable expenditures and savings of those performing the Work attributable to the change, including, in case of an increase in the Contract Sum, a reasonable allowance for overhead and profit. In such case, and also under Section A.7.3.3.3, the Design-Builder shall keep and present, in such form as the Owner may prescribe, an itemized accounting together with appropriate supporting data. Unless otherwise provided in the Design-Build Documents, costs for the purposes of this Section A.7.3.6 shall be limited to the following: .1 additional costs of professional services; .2 costs of labor, including social security, old age and unemployment insurance, fringe benefits required by agreement or custom, and workers' compensation insurance; .3 costs of materials, supplies and equipment, including cost of transportation, whether incorporated or consumed; .4 rental costs of machinery and equipment, exclusive of hand tools, whether rented from the Design- Builder or others; .5 costs of premiums for all bonds and insurance, permit fees, and sales, use or similar taxes related to the Work; and .6 additional costs of supervision and field office personnel directly attributable to the change. § A.7.3.7 The amount of credit to be allowed by the Design-Builder to the Owner for a deletion or change that results in a net decrease in the Contract Sum shall be actual net cost. When both additions and credits covering related Work or substitutions are involved in a change, the allowance for overhead and profit shall be figured on the basis of net increase, if any, with respect to that change. § A.7.3.8 Pending final determination of the total cost of a Construction Change Directive to the Owner, amounts not in dispute for such changes in the Work shall be included in Applications for Payment accompanied by a Change Order indicating the parties' agreement with part or all of such costs. For any portion of such cost that remains in dispute, the Owner shall make an interim determination for purposes of monthly payment for those costs. That determination of cost shall adjust the Contract Sum on the same basis as a Change Order, subject to the right of the Design-Builder to disagree and assert a Claim in accordance with Article A.4. § A.7.3.9 When the Owner and Design-Builder reach agreement concerning the adjustments in the Contract Sum and Contract Time, or otherwise reach agreement upon the adjustments, such agreement shall be effective immediately and shall be recorded by preparation and execution of an appropriate Change Order. § A.7.4 MINOR CHANGES IN THE WORK § A.7.4.1 The Owner shall have authority to order minor changes in the Work not involving adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of the Design-Build Documents. Such changes shall be effected by written order and shall be binding on the Design-Builder. The Design-Builder shall carry out such written orders promptly. Init. AIA Document A141 Tm - 2004 Exhibit A. Copyright @ 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 18 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: 0 (1162032265) I t t g 1~ Ouu~tillll ARTICLE A.8 TIME § A.8.1 DEFINITIONS § A.8.1.1 Unless otherwise provided, Contract Time is the period of time, including authorized adjustments, allotted in the Design-Build Documents for Substantial Completion of the Work. § A.8.1.2 The date of commencement of the Work shall be the date stated in the Agreement unless provision is made for the date to be fixed in a notice to proceed issued by the Owner. § A.8.1.3 The date of Substantial Completion is the date determined by the Owner in accordance with Section A.9.8. § A.8.1.4 The term "day" as used in the Design-Build Documents shall mean calendar day unless otherwise specifically defined. § A.8.2 PROGRESS AND COMPLETION § A.8.2.1 Time limits stated in the Design-Build Documents are of the essence of the Design-Build Contract. By executing the Design-Build Contract, the Design-Builder confirms that the Contract Time is a reasonable period for performing the Work. § A.8.2.2 The Design-Builder shall not knowingly, except by agreement or instruction of the Owner in writing, prematurely commence construction operations on the site or elsewhere prior to the effective date of insurance required by Article A.11 to be furnished by the Design-Builder and Owner. The date of commencement of the Work shall not be changed by the effective date of such insurance. Unless the date of commencement is established by the Design-Build Documents or a notice to proceed given by the Owner, the Design-Builder shall notify the Owner in writing not less than five days or other agreed period before commencing the Work to permit the timely filing of mortgages, mechanic's liens and other security interests. § A.8.2.3 The Design-Builder shall proceed expeditiously with adequate forces and shall achieve Substantial Completion within the Contract Time. § A.8.3 DELAYS AND EXTENSIONS OF TIME § A.8.3.1 If the Design-Builder is delayed at any time in the commencement or progress of the Work by an act or neglect of the Owner or of a separate contractor employed by the Owner, or by changes ordered in the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes beyond the Design-Builder's control, or by delay authorized by the Owner pending resolution of disputes pursuant to the Design-Build Documents, or by other causes which the Owner determines may justify delay, then the Contract Time shall be extended by Change Order for such reasonable time as the Owner may determine. § A.8.3.2 Claims relating to time shall be made in accordance with applicable provisions of Section A.4.1.7. § A.8.3.3 This Section A.8.3 does not preclude recovery of damages for delay by either party under other provisions of the Design-Build Documents. ARTICLE A.9 PAYMENTS AND COMPLETION § A.9.1 CONTRACT SUM § A.9.1.1 The Contract Sum is stated in the Design-Build Documents and, including authorized adjustments, is the total amount payable by the Owner to the Design-Builder for performance of the Work under the Design-Build Documents. § A.9.2 SCHEDULE OF VALUES § A.9.2.1 Before the first Application for Payment, where the Contract Sum is based upon a Stipulated Sum or the Cost of the Work plus Contractor's Fee with a Guaranteed Maximum Price, the Design-Builder shall submit to the Owner an initial schedule of values allocated to various portions of the Work prepared in such form and supported by such data to substantiate its accuracy as the Owner may require. This schedule, unless objected to by the Owner, shall be used as a basis for reviewing the Design-Builder's Applications for Payment. The schedule of values may be updated periodically to reflect changes in the allocation of the Contract Sum. Init. AIA Document A141TM - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 19 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Ordet N9 100015f556 1 which expires on 6/2/2009, and is not for resale. User Notes: ; r~ ] (1162032265) § A.9.3 APPLICATIONS FOR PAYMENT § A.9.3.1 At least ten days before the date established for each progress payment, the Design-Builder shall submit to the Owner an itemized Application for Payment for operations completed in accordance with the current schedule of values. Such application shall be notarized, if required, and supported by such data substantiating the Design- Builder's right to payment as the Owner may require, such as copies of requisitions from Contractors and material suppliers, and reflecting retainage if provided for in the Design-Build Documents: § A.9.3.1.1 As provided in Section A.7.3.8, such applications may include requests for payment on account of Changes in the Work which have been properly authorized by Construction Change Directives but are not yet included in Change Orders. § A.9.3.1.2 Such applications may not include requests for payment for portions of the Work for which the Design- Builder does not intend to pay to a Contractor or material supplier or other parties providing services for the Design- Builder, unless such Work has been performed by others whom the Design-Builder intends to pay. § A.9.3.2 Unless otherwise provided in the Design-Build Documents, payments shall be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. If approved in advance by the Owner, payment may similarly be made for materials and equipment suitably stored off the site at a location agreed upon in writing. Payment for materials and equipment stored on or off the site shall be conditioned upon compliance by the Design-Builder with procedures satisfactory to the Owner to establish the Owner's title to such materials and equipment or otherwise protect the Owner's interest and shall include the costs of applicable insurance, storage and transportation to the site for such materials and equipment stored off the site. § A.9.3.3 The Design-Builder warrants that title to all Work other than Instruments of Service covered by an Application for Payment will pass to the Owner no later than the time of payment. The Design-Builder further warrants that, upon submittal of an Application for Payment, all Work for which Certificates for Payment have been previously issued and payments received from the Owner shall, to the best of the Design-Builder's knowledge, information and belief, be free and clear of liens, Claims, security interests or encumbrances in favor of the Design- Builder, Contractors, Subcontractors, material suppliers, or other persons or entities making a claim by reason of having provided labor, materials and equipment relating to the Work. § A.9.4 ACKNOWLEDGEMENT OF APPLICATION FOR PAYMENT § A.9.4.1 The Owner shall, within seven days after receipt of the Design-Builder's Application for Payment, issue to the Design-Builder a written acknowledgement of receipt of the Design-Builder's Application for Payment indicating the amount the Owner has determined to be properly due and, if applicable, the reasons for withholding payment in whole or in part. § A.9.5 DECISIONS TO WITHHOLD PAYMENT § A.9.5.1 The Owner may withhold a payment in whole or in part to the extent reasonably necessary to protect the Owner due to the Owner's determination that the Work has not progressed to the point indicated in the Application for Payment or that the quality of Work is not in accordance with the Design-Build Documents. The Owner may also withhold a payment or, because of subsequently discovered evidence, may nullify the whole or a part of an Application for Payment previously issued to such extent as may be necessary to protect the Owner from loss for which the Design-Builder is responsible, including loss resulting from acts and omissions, because of the following: .1 defective Work not remedied; .2 third-party claims filed or reasonable evidence indicating probable filing of such claims unless security acceptable to the Owner is provided by the Design-Builder; .3 failure of the Design-Builder to make payments properly to Contractors or for design services labor, materials or equipment; .4 reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; .5 damage to the Owner or a separate contractor; .6 reasonable evidence that the Work will not be completed within the Contract Time and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or .7 persistent failure to carry out the Work in accordance with the Design-Build Documents. Init. AIA Document A141TM - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 20 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.100031 which erpirQq 6/2/2009, and is not for resale. User Notes: (1162032265) § A.9.5.2 When the above reasons for withholding payment are removed, payment will be made for amounts previously withheld. § A.9.6 PROGRESS PAYMENTS § A.9.6.1 After the Owner has issued a written acknowledgement of receipt of the Design-Builder's Application for Payment, the Owner shall make payment of the amount, in the manner and within the time provided in the Design- Build Documents. § A.9.6.2 The Design-Builder shall promptly pay the Architect, each design professional and other consultants retained directly by the Design-Builder, upon receipt of payment from the Owner, out of the amount paid to the Design-Builder on account of each such party's respective portion of the Work, the amount to which each such party is entitled. § A.9.6.3 The Design-Builder shall promptly pay each Contractor, upon receipt of payment from the Owner, out of the amount paid to the Design-Builder on account of such Contractor's portion of the Work, the amount to which said Contractor is entitled, reflecting percentages actually retained from payments to the Design-Builder on account of the Contractor's portion of the Work. The Design-Builder shall, by appropriate agreement with each Contractor, require each Contractor to make payments to Subcontractors in a similar manner. § A.9.6.4 The Owner shall have no obligation to pay or to see to the payment of money to a Contractor except as may otherwise be required by law. § A.9.6.5 Payment to material suppliers shall be treated in a manner similar to that provided in Sections A.9.6.3 and A.9.6.4. § A.9.6.6 A progress payment, or partial or entire use or occupancy of the Project by the Owner, shall not constitute acceptance of Work not in accordance with the Design-Build Documents. § A.9.6.7 Unless the Design-Builder provides the Owner with a payment bond in the full penal sum of the Contract Sum, payments received by the Design-Builder for Work properly performed by Contractors and suppliers shall be held by the Design-Builder for those Contractors or suppliers who performed Work or furnished materials, or both, under contract with the Design-Builder for which payment was made by the Owner. Nothing contained herein shall require money to be placed in a separate account and not be commingled with money of the Design-Builder, shall create any fiduciary liability or tort liability on the part of the Design-Builder for breach of trust or shall entitle any person or entity to an award of punitive damages against the Design-Builder for breach of the requirements of this provision. § A.9.7 FAILURE OF PAYMENT § A.9.7.1 If for reasons other than those enumerated in Section A.9.5.1, the Owner does not issue a payment within the time period required by Section 5.1.3 of the Agreement, then the Design-Builder may, upon seven additional days' written notice to the Owner, stop the Work until payment of the amount owing has been received. The Contract Time shall be extended appropriately and the Contract Sum shall be increased by the amount of the Design-Builder's reasonable costs of shutdown, delay and start-up, plus interest as provided for in the Design-Build Documents. § A.9.8 SUBSTANTIAL COMPLETION § A.9.8.1 Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Design-Build Documents so that the Owner can occupy or use the Work or a portion thereof for its intended use. § A.9.8.2 When the Design-Builder considers that the Work, or a portion thereof which the Owner agrees to accept separately, is substantially complete, the Design-Builder shall prepare and submit to the Owner a comprehensive list of items to be completed or corrected prior to final payment. Failure to include an item on such list does not alter the responsibility of the Design-Builder to complete all Work in accordance with the Design-Build Documents. § A.9.8.3 Upon receipt of the Design-Builder's list, the Owner shall make an inspection to determine whether the Work or designated portion thereof is substantially complete. If the Owner's inspection discloses any item, whether Init. AIA Document A141 TM - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 21 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: 03 (1162032265) or not included on the Design-Builder's list, which is not substantially complete, the Design-Builder shall complete or correct such item. In such case, the Design-Builder shall then submit a request for another inspection by the Owner to determine whether the Design-Builder's Work is substantially complete. § A.9.8.4 In the event of a dispute regarding whether the Design-Builder's Work is substantially complete, the dispute shall be resolved pursuant to Article A.4. § A.9.8.5 When the Work or designated portion thereof is substantially complete, the Design-Builder shall prepare for the Owner's signature an Acknowledgement of Substantial Completion which, when signed by the Owner, shall establish (1) the date of Substantial Completion of the Work, (2) responsibilities between the Owner and Design- Builder for security, maintenance, heat, utilities, damage to the Work and insurance, and (3) the time within which the Design-Builder shall finish all items on the list accompanying the Acknowledgement. When the Owner's inspection discloses that the Work or a designated portion thereof is substantially complete, the Owner shall sign the Acknowledgement of Substantial Completion. Warranties required by the Design-Build Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Acknowledgement of Substantial Completion. § A.9.8.6 Upon execution of the Acknowledgement of Substantial Completion and consent of surety, if any, the Owner shall make payment of retainage applying to such Work or designated portion thereof. Such payment shall be adjusted for Work that is incomplete or not in accordance with the requirements of the Design-Build Documents. § A.9.9 PARTIAL OCCUPANCY OR USE § A.9.9.1 The Owner may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate agreement with the Design-Builder, provided such occupancy or use is consented to by the insurer, if so required by the insurer, and authorized by public authorities having jurisdiction over the Work. Such partial occupancy or use may commence whether or not the portion is substantially complete, provided the Owner and Design-Builder have accepted in writing the responsibilities assigned to each of them for payments, retainage, if any, security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the period for completion or correction of the Work and commencement of warranties required by the Design-Build Documents. When the Design-Builder considers a portion substantially complete, the Design-Builder shall prepare and submit a list to the Owner as provided under Section A.9.8.2. Consent of the Design-Builder to partial occupancy or use shall not be unreasonably withheld. The stage of the progress of the Work shall be determined by written agreement between the Owner and Design-Builder. § A.9.9.2 Immediately prior to such partial occupancy or use, the Owner and Design-Builder shall jointly inspect the area to be occupied or portion of the Work to be used to determine and record the condition of the Work. § A.9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Design-Build Documents. § A.9.10 FINAL COMPLETION AND FINAL PAYMENT § A.9.10.1 Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Owner shall promptly make such inspection and, when the Owner finds the Work acceptable under the Design-Build Documents and fully performed, the Owner shall, subject to Section A.9.10.2, promptly make final payment to the Design-Builder. § A.9.10.2 Neither final payment nor any remaining retained percentage will become due until the Design-Builder submits to the Owner (1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner's property might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied, (2) a certificate evidencing that insurance required by the Design-Build Documents to remain in force after final payment is currently in effect and will not be cancelled or allowed to expire until at least 30 days' prior written notice has been given to the Owner, (3) a written statement that the Design-Builder knows of no substantial reason that the insurance will not be renewable to cover the period required by the Design-Build Documents, (4) consent of surety, if any, to final payment, and (5) if required by the Owner, other data establishing payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of the Design-Build Contract, to the extent and in such form as may be designated by the Owner. If a Contractor refuses to furnish a release or waiver required Init. AIA Document At 41 TM - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 22 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expire on / 2009, and is not for resale. User Notes: (1162032265) tj a aa ~c .r, by the Owner, the Design-Builder may furnish a bond satisfactory to the Owner to indemnify the Owner against such lien. If such lien remains unsatisfied after payments are made, the Design-Builder shall refund to the Owner all money that the Owner may be liable to pay in connection with the discharge of such lien, including all costs and reasonable attorneys' fees. § A.9.10.3 If, after the Owner determines that the Design-Builder's Work or designated portion thereof is substantially completed, final completion thereof is materially delayed through no fault of the Design-Builder or by issuance of a Change Order or a Construction Change Directive affecting final completion, the Owner shall, upon application by the Design-Builder, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for Work not fully completed or corrected is less than retainage stipulated in the Design-Build Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Design-Builder. Such payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of claims. § A.9.10.4 The making of final payment shall constitute a waiver of Claims by the Owner except those arising from: .1 liens, Claims, security interests or encumbrances arising out of the Design-Build Documents and unsettled; .2 failure of the Work to comply with the requirements of the Design-Build Documents; or .3 terms of special warranties required by the Design-Build Documents. § A.9.10.5 Acceptance of final payment by the Design-Builder, a Contractor or material supplier shall constitute a waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at the time of final Application for Payment. ARTICLE A.10 PROTECTION OF PERSONS AND PROPERTY § A.10.1 SAFETY PRECAUTIONS AND PROGRAMS § A.10.1.1 The Design-Builder shall be responsible for initiating and maintaining all safety precautions and programs in connection with the performance of the Design-Build Contract. § A.10.2 SAFETY OF PERSONS AND PROPERTY § A.10.2.1 The Design-Builder shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to: .1 employees on the Work and other persons who may be affected thereby; .2 the Work and materials and equipment to be incorporated therein, whether in storage on or off the site or under the care, custody or control of the Design-Builder or the Design-Builder's Contractors or Subcontractors; and .3 other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. § A.10.2.2 The Design-Builder shall give notices and comply with applicable laws, ordinances, rules, regulations and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss. § A.10.2.3 The Design-Builder shall erect and maintain, as required by existing conditions and performance of the Design-Build Documents, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. § A.10.2.4 When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the Design-Builder shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. § A.10.2.5 The Design-Builder shall promptly remedy damage and loss (other than damage or loss insured under property insurance required by the Design-Build Documents) to property referred to in Sections A.10.2.1.2 and A.10.2.1.3 caused in whole or in part by the Design-Builder, the Architect, a Contractor, a Subcontractor, or anyone AIA Document A141 Tm - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 23 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No. 10003585561 which expires on 6/2/2009, and is not for resale. User Notes: (1162032265) directly or indirectly employed by any of them or by anyone for whose acts they may be liable and for which the Design-Builder is responsible under Sections A.10.2.1.2 and A.10.2.1.3, except damage or loss attributable to acts or omissions of the Owner or anyone directly or indirectly employed by the Owner, or by anyone for whose acts the Owner may be liable, and not attributable to the fault or negligence of the Design-Builder. The foregoing obligations of the Design-Builder are in addition to the Design-Builder's obligations under Section A.3.17. § A.10.2.6 The Design-Builder shall designate in writing to the Owner a responsible individual whose duty shall be the prevention of accidents. § A.10.2.7 The Design-Builder shall not load or permit any part of the construction or site to be loaded so as to endanger its safety. § A.10.3 HAZARDOUS MATERIALS § A.10.3.1 If reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance, including but not limited to asbestos or polychlorinated biphenyl (PCB), encountered on the site by the Design-Builder, the Design-Builder shall, upon recognition or reasonable notice of the condition, immediately stop Work in the affected area and promptly report the condition to the Owner in writing § A.10.3.2 The Owner shall obtain the services of a licensed laboratory to verify the presence or absence of the material or substance reported by the Design-Builder and, in the event such material or substance is found to be present, to verify that it has been rendered harmless. Unless otherwise required by the Design-Build Documents, the Owner shall furnish in writing to the Design-Builder the names and qualifications of persons or entities who are to perform tests verifying the presence or absence of such material or substance or who are to perform the task of removal or safe containment of such material or substance. The Design-Builder shall promptly reply to the Owner in writing stating whether or not the Design-Builder has reasonable objection to the persons or entities proposed by the Owner. If the Design-Builder has an objection to a person or entity proposed by the Owner, the Owner shall propose another to whom the Design-Builder has no reasonable objection. When the material or substance has been rendered harmless, work in the affected area shall resume upon written agreement of the Owner and Design-Builder. The Contract Time shall be extended appropriately, and the Contract Sum shall be increased in the amount of the Design-Builder's reasonable additional costs of shutdown, delay and start-up, which adjustments shall be accomplished as provided in Article A.7. § A.10.3 (Paragraph deleted) § A.10.4 The Owner shall not be responsible under Section A.10.3 for materials and substances brought to the site by the Design-Builder unless such materials or substances were required by the Design-Build Documents and the Design-Builder advises the Owner in writing of the danger or hazard of such materials or substances. § A.10.5 § A.10.6 EMERGENCIES § A.10.6.1 In an emergency affecting safety of persons or property, the Design-Builder shall act, at the Design- Builder's discretion, to prevent threatened damage, injury or loss. Additional compensation or extension of time claimed by the Design-Builder on account of an emergency shall be determined as provided in Section A.4.1.7 and Article A.7. § A.10.6.2 The Design-Builder shall promptly report in writing to the Owner all accidents arising out of or in connection with the work which caused or may have caused death, personal injury, or property damage, giving full details of the accident and statement(s) of witnesses. In addition, if death, serious personal injury, or serious property damage are caused or may have been caused, the accident shall be reported immediately by telephone or messenger to the Owner. § A.10.6.3 For purposes of this provision, the term "Hazardous Materials" shall mean and refer to any wastes, materials, or other substances of any kind or character that are known or become known or regulated as hazardous or toxic wastes or substances, or which require special handling or treatment, under any applicable federal, state, or local law, code, ordinance, rule, regulation, or order. The Design-Build Contractor shall be responsible for any and all Hazardous Materials brought on site by the Design-Build Contractor, its Contractors, Subcontractors, Sub- subcontractors, or suppliers, or any of their agents or employees, or any other persons or entities performing portions of the Work under direct or indirect contract with the Design-Build Contractor. The Design-Build Contractor shall Init. AIA Document A141TM - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 24 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1000368556 1 wfuah expires on 6/2/2009, and is not for resale. User Notes: 1 1©~ (1162032265) not be responsible for any Hazardous Materials brought on site by the Owner or the Owner's separate contractors or for any Hazardous Materials pre-existing on site as of the date of the Notice to Proceed on the Design Services issued by the Owner. However, the Design-Build Contractor shall notify the Owner in writing and stop Work immediately if it suspects that any Hazardous Materials are pre-existing on site. The Owner shall handle, treat, or remove or cause to be handled, treated, or removed any Hazardous Materials that are pre-existing on site in a time and manner as to avoid unreasonable delay in the Work. Except for the foregoing, the Design-Build Contractor shall prevent the presence, use, generation, release, discharge, storage, disposal, or transportation of Hazardous Materials on, under, in, above, or from the Project in nothing other than in strict compliance with all applicable federal, state, and local laws, codes, ordinances, rules, regulations and orders. The Design-Build Contractor shall indemnify, defend, and hold the Owner harmless from and against: (a) any loss, cost, expense, claim, or liability arising out of any investigation, monitoring, judgment, assessment, clean-up, containment, removal, storage, or restoration work (herein referred to as "Remedial Work") required by, or incurred by, the Owner or any other person, party, or entity in a reasonable belief that such Remedial Work is required by any applicable federal, state, or local law, code, ordinance, rule, regulation, or order, or by any governmental or public agency, authority, or political subdivision having jurisdiction over the construction area; and (b) any claims of third parties for loss, injury, expense, or damage arising out of the presence, release, or discharge of any Hazardous Materials on, under, in, above, to, or from the construction area; to the extent the Design-Build Contractor is responsible for and/or liable for hereunder. In the event any Remedial Work is so required under any applicable federal, state, or local law, code, ordinance, rule, regulation, or order, the Design-Build Contractor shall promptly perform or cause to be performed such Remedial Work in compliance with such law, code, ordinance, rule, regulation, or order at the Design-Build Contractor's sole cost and expense. In the event the Design-Build Contractor shall fail to commence the Remedial Work in a timely fashion, or shall fail to prosecute diligently the Remedial Work to completion, such failure shall constitute an event of default on the part of the Design-Build Contractor under the terms of this Contract, and the Owner, in addition to any other rights or remedies afforded hereunder, may, but shall not be obligated to, cause the Remedial Work to be performed, and the Design-Build Contractor shall promptly reimburse the Owner for the cost and expense thereof upon demand by the Owner. The Design-Build Contractor's duty to indemnify, defend, and hold harmless the Owner as described herein and duty to perform or cause to be performed any Remedial Work as described herein is limited to the Hazardous Materials brought on site by the Design-Build Contractor, its Contractors, Subcontractors, Sub-subcontractors, or suppliers, or any of their agents or employees, or any other persons or entities performing portions of the Work under direct or indirect contract with the Design-Build Contractor, and shall not be construed to include any Hazardous Materials brought on site by the Owner or the Owner's separate contractors or for any Hazardous Materials pre-existing on site as of the date of the Notice to Proceed on the Design Services issued by the Owner, unless the Design-Build Contractor suspected that such Hazardous Materials were pre-existing prior to the issuance of the Notice to Proceed on the Design Services and failed to notify the Owner in accordance with this Section A. 10.3.3 or knew or should have known that reasonable precautions of such Hazardous Materials would be inadequate to prevent foreseeable bodily injury or death to persons and failed to notify the Owner in accordance with Section A.10.3.1. § A.10.6.4 The Owner shall not be responsible under Section A.10.6.3 for materials and substances brought to the site by the Design-Build Contractor, unless such materials or substances were required by the Design-Build Documents and the Design-Build Contractor advised the Owner in writing of the dangers or hazards of such materials or substances. § A.10.7 WATER PRECAUTIONS § A.10.7.1 The Design-Build Contractor shall keep all parts of the site, including excavations, free from any accumulation of water, no matter the source or cause. § A.10.7.2 The Design-Build Contractor shall dispose of water in such a manner as to not or will not endanger public health or cause damage or expense to any person or property. The Design-Build Contractor shall also comply with the requirements of any public agencies or authorities having jurisdiction over such matters. If sewers and/or streets are allowed to be used for drainage or disposal of water during construction, the Design-Build Contractor shall maintain and leave such satisfactorily clean upon completion of the Work. § A.10.8 SIGNS § A.10.8.1 The Design-Build Contractor shall not erect or place signs, billboards, or advertisements anywhere on or above the Project site, except as required by law or under Contract. § A.10.8.2 The Design-Build Contractor shall furnish and maintain all necessary signs or symbols required for performance of the Contract and as required by law. AIA Document A141 TM - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA"' Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 25 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User (1162032265) Notes: I ARTICLE A.11 INSURANCE AND BONDS § A.11.1 Except as may otherwise be set forth in the Agreement or elsewhere in the Design-Build Documents, the Owner and Design-Builder shall purchase and maintain the following types of insurance with limits of liability and deductible amounts and subject to such terms and conditions, as set forth in this Article A.11. § A.11.2 DESIGN-BUILDER'S LIABILITY INSURANCE § A.11.2.1 The Design-Builder shall purchase from and maintain in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located such insurance as will protect the Design-Builder from claims set forth below that may arise out of or result from the Design-Builder's operations under the Design-Build Contract and for which the Design-Builder may be legally liable, whether such operations be by the Design-Builder, by a Contractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable: .1 claims under workers' compensation, disability benefit and other similar employee benefit acts which are applicable to the Work to be performed; .2 claims for damages because of bodily injury, occupational sickness or disease, or death of the Design- Builder's employees; .3 claims for damages because of bodily injury, sickness or disease, or death of any person other than the Design-Builder's employees; .4 claims for damages insured by usual personal injury liability coverage; .5 claims for damages, other than to the Work itself, because of injury to or destruction of tangible property, including loss of use resulting therefrom; .6 claims for damages because of bodily injury, death of a person or property damage arising out of ownership, maintenance or use of a motor vehicle; .7 claims for bodily injury or property damage arising out of completed operations; and .8 claims involving contractual liability insurance applicable to the Design-Builder's obligations under Section A.3.17. § A.11.2.2 The insurance required by Section A.11.2.1 shall be written for not less than limits of liability specified in the Design-Build Documents or required by law, whichever coverage is greater. Coverages, whether written on an occurrence or claims-made basis, shall be maintained without interruption from date of commencement of the Work until date of final payment and termination of any coverage required to be maintained after final payment. § A.11.2.3 Certificates of insurance acceptable to the Owner shall be filed with the Owner prior to commencement of the Work. These certificates and the insurance policies required by this Section A.11.2 shall contain a provision that coverages afforded under the policies will not be canceled or allowed to expire until at least 30 days' prior written notice has been given to the Owner. If any of the foregoing insurance coverages are required to remain in force after final payment and are reasonably available, an additional certificate evidencing continuation of such coverage shall be submitted with the final Application for Payment as required by Section A.9.10.2. Information concerning reduction of coverage on account of revised limits or claims paid under the General Aggregate, or both, shall be furnished by the Design-Builder with reasonable promptness in accordance with the Design-Builder's information and belief. § A.11.3 OWNER'S LIABILITY INSURANCE § A.11.3.1 The Owner shall be responsible for purchasing and maintaining the Owner's usual liability insurance. § A.11.4 PROPERTY INSURANCE § A.11.4.1 Unless otherwise provided, the Owner shall purchase and maintain, in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located, property insurance written on a builder's risk, "all-risk" or equivalent policy form in the amount of the initial Contract Sum, plus the value of subsequent Design-Build Contract modifications and cost of materials supplied or installed by others, comprising total value for the entire Project at the site on a replacement cost basis without optional deductibles. Such property insurance shall be maintained, unless otherwise provided in the Design-Build Documents or otherwise agreed in writing by all persons and entities who are beneficiaries of such insurance, until final payment has been made as provided in Section A.9.10 or until no person or entity other than the Owner has an insurable interest in the property required by this Section A.11.4 to be covered, whichever is later. This insurance shall include interests of the Owner, Design- Builder, Contractors and Subcontractors in the Project. Init. AIA Document A141TM - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 26 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No. 10003585561 which expires 6/2/2009, and is not for resale. User Notes: (1162032265) § A.11.4.1.1 Property insurance shall be on an "all-risk" or equivalent policy form and shall include, without limitation, insurance against the perils of fire (with extended coverage) and physical loss or damage including, without duplication of coverage, theft, vandalism, malicious mischief, collapse, earthquake, flood, windstorm, falsework, testing and startup, temporary buildings and debris removal, including demolition occasioned by enforcement of any applicable legal requirements, and shall cover reasonable compensation for Design-Builder's services and expenses required as a result of such insured loss. § A.11.4.1.2 If the Owner does not intend to purchase such property insurance required by the Design-Build Contract and with all of the coverages in the amount described above, the Owner shall so inform the Design-Builder in writing prior to commencement of the Work. The Design-Builder may then effect insurance that will protect the interests of the Design-Builder, Contractors and Subcontractors in the Work, and, by appropriate Change Order, the cost thereof shall be charged to the Owner. If the Design-Builder is damaged by the failure or neglect of the Owner to purchase or maintain insurance as described above without so notifying the Design-Builder in writing, then the Owner shall bear all reasonable costs properly attributable thereto. § A.11.4.1.3 . § A.11.4.1.4 This property insurance shall cover portions of the Work stored off the site and also portions of the Work in transit. § A.11.4.1.5 Partial occupancy or use in accordance with Section A.9.9 shall not commence until the insurance company or companies providing property insurance have consented to such partial occupancy or use, by endorsement or otherwise. The Owner and the Design-Builder shall take reasonable steps to obtain consent of the insurance company or companies and shall, without mutual written consent, take no action with respect to partial occupancy or use that would cause cancellation, lapse or reduction of insurance. If during the project construction period the Owner insures properties, real or personal or both at or adjacent to the site by property insurance under policies separate from these insuring the project, or if after final payment, property insurance is to be provided on the completed project through a policy or policies other than those insuring the project during the construction period. The Owner shall waive all rights in accordance with the terms of Section A.11.4.7 for damages caused by fire or other causes of loss covered by this separate property insurance. All separate policies shall provide this waiver of subrogation by endorsement or otherwise. § A.11.4.2 Boiler and Machinery Insurance. The Owner shall purchase and maintain boiler and machinery insurance required by the Design-Build Documents or by law, which shall specifically cover such insured objects during installation and until final acceptance by the Owner; this insurance shall include interests of the Owner, Design- Builder, Contractors and Subcontractors in the Work, and the Owner and Design-Builder shall be named insureds. § A.11.4.3 Loss of Use Insurance. The Owner, at the Owner's option, may purchase and maintain such insurance as will insure the Owner against loss of use of the Owner's property due to fire or other hazards, however caused. § A.11.4.4 If the Design-Builder requests in writing that insurance for risks other than those described herein or other special causes of loss be included in the property insurance policy, the Owner shall, if possible, include such insurance, and the cost thereof shall be charged to the Design-Builder by appropriate Change Order. § A.11.4.5 If during the Project construction period the Owner insures properties, real or personal or both, at or adjacent to the site by property insurance under policies separate from those insuring the Project, or if after final payment property insurance is to be provided on the completed Project through a policy or policies other than those insuring the Project during the construction period, the Owner shall waive all rights in accordance with the terms of Section A.11.4.7 for damages caused by fire or other causes of loss covered by this separate property insurance. All separate policies shall provide this waiver of subrogation by endorsement or otherwise. § A.11.4.6 Before an exposure to loss may occur, the Owner shall file with the Design-Builder a copy of each policy that includes insurance coverages required by this Section A.11.4. Each policy shall contain all generally applicable conditions, definitions, exclusions and endorsements related to this Project. Each policy shall contain a provision that the policy will not be canceled or allowed to expire and that its limits will not be reduced until at least 30 days' prior written notice has been given to the Design-Builder. AIA Document A141 TM - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 27 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 612/2009, and is not for resale. User Notes: I ( ~r, (1162032265) § A.11.4.7 Waivers of Subrogation. The Owner and Design-Builder waive all rights against each other and any of their consultants, separate contractors described in Section A.6.1, if any, Contractors, Subcontractors, agents and employees, each of the other, and any of their contractors, subcontractors, agents and employees, for damages caused by fire or other causes of loss to the extent covered by property insurance obtained pursuant to this Section A.11.4 or other property insurance applicable to the Work, except such rights as they have to proceeds of such insurance held by the Owner as fiduciary. The Owner or Design-Builder, as appropriate, shall require of the separate contractors described in Section A.6.1, if any, and the Contractors, Subcontractors, agents and employees of any of them, by appropriate agreements, written where legally required for validity, similar waivers each in favor of other parties enumerated herein. The policies shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, even though the person or entity did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged. § A.11.4.8 A loss insured under Owner's property insurance shall be adjusted by the Owner as fiduciary and made payable to the Owner as fiduciary for the insureds, as their interests may appear, subject to requirements of any applicable mortgagee clause and of Section A.11.4.10. The Design-Builder shall pay Contractors their just shares of insurance proceeds received by the Design-Builder, and, by appropriate agreements, written where legally required for validity, shall require Contractors to make payments to their Subcontractors in similar manner. § A.11.4.9 § A.11.4.10 The Owner as fiduciary shall have power to adjust and settle a loss with insurers unless one of the parties in interest shall object in writing within five days after occurrence of loss to the Owner's exercise of this power.; The Owner as fiduciary shall, in the case of a decision or award, make settlement with insurers in accordance with directions of a decision or award. If distribution of insurance proceeds by arbitration is required, the arbitrators will direct such distribution. § A.11.5 PERFORMANCE BOND AND PAYMENT BOND § A.11.5.1 The Owner shall have the right to require the Design-Builder to furnish bonds covering faithful performance of the Design-Build Contract and payment of obligations arising thereunder, including payment to design professionals engaged by or on behalf of the Design-Builder, as stipulated in bidding requirements or specifically required in the Agreement or elsewhere in the Design-Build Documents on the date of execution of the Design-Build Contract. ARTICLE A.12 UNCOVERING AND CORRECTION OF WORK § A.12.1 UNCOVERING OF WORK § A.12.1.1 If a portion of the Work is covered contrary to the Owner's or a governmental or public authority's request, or to requirements specifically expressed in the Design-Build Documents, it must be uncovered for the Owner's examination and be replaced at the Design-Builder's sole cost and expense without change to or addition to the Contract Time. § A.12.1.2 If a portion of the Work has been covered in which the Owner or a governmental or public authority has not specifically requested to examine prior to its being covered, the Owner or a governmental or public authority may request to see such Work and it shall be uncovered by the Design-Builder. If such Work is in accordance and/or compliance with the Design-Build Documents, the costs of uncovering and replacement shall, by appropriate Change Order, be at the Owner's expense. If such Work is not in accordance and/or compliance with the Design- Build Documents, correction, repair or replacement of the work shall be at the Design-Builder's expense unless the condition was caused by the Owner. § A.12.2 CORRECTION OF WORK § A.12.2.1 BEFORE OR AFTER SUBSTANTIAL COMPLETION. § A.12.2.1.1 The Design-Builder shall promptly correct, repair or replace the Work rejected by the Owner or other governmental or public authority with such power and authority to request or demand such correction, repair or replacement of work, failing to conform to the requirements of the Design-Build Documents, whether discovered before or after Substantial Completion and whether or not fabricated, installed or completed. Costs of correcting, Init. AIA Document A141 TO -2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, 28 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: I I I at (1162032265) repairing or replacing such rejected or non-conforming Work, including additional testing and inspections, shall be at the Design-Builder's sole cost and expense. § A.12.2.2 AFTER SUBSTANTIAL COMPLETION § A.12.2.2.1 In addition to the Design-Builder's obligations under Section A.3.5, if, within one year after the date of Substantial Completion or after the date for commencement of warranties established under Section A.9.8.5 or by terms of an applicable special warranty required by the Design-Build Documents, any of the Work is found to be defective or not in accordance or compliance with the requirements of the Design-Build Documents, the Design- Builder shall correct, repair or replace it promptly after receipt of written notice from the Owner to do so but not later than thirty (30) days thereof unless the Owner has previously given the Design-Builder a written specific acceptance of such condition. Correction, repair or replacement of defective or non-conforming work shall begin within thirty (30) days of the receipt of written notice from the Owner and shall be completed within a reasonable time thereafter but not later than six (6) months thereof. If the Design-Builder fails to begin work to correct, repair or replace non-conforming Work within thirty (30) days after receipt of written notice from the Owner, the Owner may correct it in accordance with Section A.2.5. This obligation under this section shall survive acceptance of the work under the Design-Builder Contract and termination of same. § A.12.2.2.2 The one-year period for correction of Work shall be extended with respect to portions of Work first performed after Substantial Completion by the period of time between Substantial Completion and the actual performance of the Work. § A.12.2.2.3 § A.12.2.3 The Design-Builder shall remove at its sole cost and expense from the site portions of the Work that are not in accordance or compliance with the requirements of the Design-Build Documents and are neither corrected, repaired or replaced by the Design-Builder nor accepted by the Owner. § A.12.2.4 The Design-Builder shall bear the cost of correcting, repairing or replacing destroyed or damaged construction, whether completed or partially completed, of the Owner or separate contractors caused by the Design- Builder's correction, repair or replacement or removal of Work which is not in accordance or compliance with the requirements of the Design-Build Documents. § A.12.2.5 Nothing contained in this Section A.12.2 shall be construed to establish a period of limitation with respect to other obligations the Design-Builder might have under the Design-Build Documents but relates only to the specific obligation of the Design-Builder to correct, repair or replace the Work, and has no relationship to the time within which the obligation to comply with the Design-Build Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Design-Builder's liability with respect to the Design-Builder's obligations other than specifically to correct, repair or replace the Work. § A.12.2.6 Any cost of repairs to any building not covered by insurance proceeds shall be paid by the Design-Builder. If the Owner must make any repairs, such costs will be deducted from the Contract Sum otherwise be due and payable to the Owner upon request. § A.12.3 ACCEPTANCE OF NONCONFORMING WORK § A.12.3.1 If the Owner prefers to accept Work that is not in accordance or compliance with the requirements of the Design-Build Documents, the Owner may do so instead of requiring its removal and/or correction, in which case the Contract Sum will be equitably adjusted by Change Order if appropriate as determined by the Owner. Such adjustment shall be effected whether or not final payment has been made to the Design-Builder ARTICLE A.13 MISCELLANEOUS PROVISIONS § A.13.1 GOVERNING LAW § A.13.1.1 The validity and interpretation of the Design-Build Contract and the rights and obligations of the parties hereunder shall be governed by the law of the place where the Project is located. The Design-Build Contract is performable and enforceable in Brazos County, Texas where the principal office of the Owner is located and where the work shall be performed and the state courts of Brazos County shall be the sole and exclusive venue for any Init. AIA Document A141Tm - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA ' Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 29 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: (1162032265) __IIJ ~ffi~.~~ aIr litigation, special proceedings or other proceeding as between the parties that may be brought or arise out of, in connection with or by reason of the Design-Build contract. § A.13.2 SUCCESSORS AND ASSIGNS § A.13.2.1 The Owner and Design-Builder respectively bind themselves, their partners, successors, assigns and legal representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Design-Build Documents. Except as provided in Section A.13.2.2, neither party to the Design-Build Contract shall assign the Design-Build Contract as a whole without written consent of the other. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Design-Build Contract. § A.13.2.2 The Owner may, without consent of the Design-Builder, assign the Design-Build Contract to an institutional lender providing construction financing for the Project. In such event, the lender shall assume the Owner's rights and obligations under the Design-Build Documents. The Design-Builder shall execute all consents reasonably required to facilitate such assignment. § A.13.3 WRITTEN NOTICE § A.13.3.1 Any notice to be given under the Design-Build Contract shall be deemed to have been given if reduced to writing and delivered by a nationally recognized personal delivery or courier service or mailed by certified or registered mail, return receipt requested, postage pre-paid, to the party's representative at the addresses set forth herein or to such other address as either party may specify in writing, unless otherwise provided herein. Such notice shall be deemed to have been given five (5) days subsequent to the date it was so delivered or mailed. § A.13.3.2 The Design-Build Contractor may not assign its rights and duties under the Design-Build Contract without the prior written consent of the Owner and formal approval of the Commissioners Court, even if such assignment is due to a change in ownership or affiliation. Any assignment attempted without such prior consent and approval shall be null and void and the Design-Build Contractor shall nevertheless remain legally responsible for all obligations under the Design-Build Contract. Such consent and approval shall not relieve the Design-Build Contractor of liability in the event of a default by its assignee. § A.13.3.3 The Design-Build Contractor shall not assign any monies due or to become due hereunder without the prior written consent of the Owner and formal approval of the Commissioners Court, and of the Design-Build Contractor's surety. A copy of such consent of the surety, together with a copy of the assignment, shall be promptly submitted to the Owner for its records. In the event the Design-Build Contractor assigns its rights to all or any part of any monies due to or to become due under this Design-Build Contract, the instrument of assignment must contain a clause substantially to the effect that it is agreed by the parties that the right of assignees in and to any monies due or to become due to the Design-Build Contractor under the Design-Build Contract shall be subject to prior liens and claims of all persons, firms, and corporations (1) for services rendered; (2) for payment of all laborers and mechanics for labor performed; (3) for payment of all materials and equipment furnished and payment of all materials and equipment used or rented in the performance of the Work; and (4) for payment of any liens, claims, or amounts due to any government entity or any of their funds. Any and all payments to an assignee shall constitute full satisfaction and accord to the Design-Build Contractor of any and all obligations for which said sums are paid. The Owner shall be released from any and all obligation to pay the Design-Build Contractor such payments, until the Owner receives formal written notice of a change from the Design-Build Contractor, and the Design-Build Contractor agrees to indemnify and hold the Owner harmless from and against any and all claims and liabilities arising from the assignment, including, but not limited to, payments of any and all monies under the Design-Build Contract to the Design-Build Contractor. § A.13.4 RIGHTS AND REMEDIES § A.13.4.1 Duties and obligations imposed by the Design-Build Documents and rights and remedies available thereunder shall be in addition to and not a limitation of duties, obligations, rights and remedies otherwise imposed or available by law. § A.13.4.2 No action or failure to act by the Owner or Design-Builder shall constitute a waiver of a right or duty afforded them under the Design-Build Documents, nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed in writing by the parties. Init. AIA Document A141 Tu - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA ' Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 30 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556 1 which eVpires on 6/2/2009, and is not for resale. User Notes: (1162032265) § A.13.4.3 Except as provided for in Section A.9.11, pursuit of any remedy provided in the Design-Build Contract shall not preclude pursuit of any other remedies herein provided or any other remedies provided by law or equity, including injunctive relief, nor shall pursuit of any remedy herein provided constitute a forfeiture or waiver of any obligation of the defaulting party hereunder or of any damages accruing by reason of the violation of any of the terms, provisions, and covenants herein contained. No waiver of any term, covenant, condition, or violation of the Design-Build Contract shall be deemed or construed to constitute a waiver of any other violation or breach of any of the terms, provisions, and covenants herein contained, and forbearance to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default. Any waiver of any provision of the Design-Build Contract or violation thereof must be by a written instrument executed by the parties. § AA 3.5 TESTS AND INSPECTIONS § A.13.5.1 Tests, inspections and approvals of portions of the Work required by the Design-Build Documents or by laws, codes, ordinances, rules, regulations or orders of public authorities having jurisdiction over such matters shall be made at an appropriate time. Unless otherwise provided, the Design-Builder shall make arrangements for such tests, inspections and approvals with an independent testing laboratory or entity acceptable to the Owner or with the appropriate governmental or public authority, and shall bear all related costs of tests, inspections and approvals. The Design-Builder shall give timely written notice of when and where tests and inspections are to be made so that the Owner may be present for such procedures. § A.13.5.2 If the Owner or governmental or public authorities or agency having jurisdiction determine that portions of the Work require additional testing, inspection or approval not included under Section A.13.5.1, the Owner shall in writing instruct the Design-Builder to make arrangements for such additional testing, inspection or approval by an entity acceptable to the Owner, and the Design-Builder shall give timely written notice to the Owner of when and where tests and inspections are to be made so that the Owner may be present for such procedures. Such costs, except as provided in Section A.13.5.3, shall be at the Owner's expense unless otherwise provided for herein. § A.13.5.3 If such procedures for testing, inspection or approval under Sections A.13.5.1 and A.13.5.2 reveal failure of the portions of the Work to comply with requirements established by the Design-Build Documents, all costs made necessary by such failure, including the cost of those of repeated procedures for testing, inspections and approvals, shall be at the Design-Builder's expense. I § A.13.5.4 Required certificates of testing, inspection or approval shall, unless otherwise required by the Design- Build Documents, be secured and maintained by the Design-Builder and promptly delivered to the Owner. § A.13.5.5 If the Owner is to observe tests, inspections or approvals required by the Design-Build Documents, the Owner will do so promptly and, where practicable, at the normal or usual place of testing. § A.13.5.6 Tests or inspections conducted pursuant to the Design-Build Documents shall unless expressly provided otherwise be made promptly to avoid unreasonable delay in the Work. § A.13.6 EQUAL OPPORTUNITY § A.13.6.1 (Paragraphs deleted) The Design-Build Contractor shall maintain policies of employment as follows: § A.13.6.1.1 The Design-Build Contractor and its Contractors and Subcontractors shall not discriminate against any employees or applicants for employment because of race, religion, color, sex, or national origin. The Design-Build Contractor shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, religion, color, sex, or national origin. Such action shall include, but not be limited to, the following: (1) employment, upgrading, demotion, or transfer; (2) recruitment or recruitment advertising; (3) layoff or termination; (4) rates of pay or other forms of compensation; and (5) selection AIA Document A141 TM - 2004 Exhibit A. Copyright @ 2004 by The American Institute of Architects. All rights reserved. WARNING: This Ale Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 31 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 612/2009, and is not for resale. User Notes: I I I (1162032265) for training, including apprenticeship. The Design-Build Contractor agrees to post or station, in conspicuous places available to employees and applicants for employment, notices setting forth the policies of nondiscrimination. § A.13.6.1.2 The Design-Build Contractor and its Contractors and Subcontractors shall, in all solicitations or advertisements for employment placed by them or on their behalf, state that all qualified applicants will receive consideration for employment without regard to race, religion, color, sex, or national origin. § A.13.7 FISCAL FUNDING CLAUSE § A.13.7.1 Notwithstanding any provisions contained herein, the obligations of the Owner under the Design-Build Contract are expressly contingent upon the availability of funding for each item and obligation contained herein for the term of the Design-Build Contract and any extensions thereto. The Design-Build Contractor, any Contractor, any Subcontractor, any Sub-subcontractor, or any other person or entity directly or indirectly employed by the Design-Build Contractor or performing Work or supplying materials or equipment on the Design-Build Contractor's behalf, or any other person or entity to whom the Design-Build Contractor may be liable to, shall have no right of action against the Owner in the event the Owner is unable to fulfill its obligations under this Design-Build Contract as a result of lack of sufficient funding for any item or obligation from any source utilized to fund the Design-Build Contract or failure to budget or authorize funding for the Design-Build Contract during the current or future fiscal years. In the event that the Owner is unable to fulfill its obligations under the Design-Build Contract as a result of lack of sufficient funding, or if funds become unavailable, the Owner may, in its sole discretion, provide funds from a separate source or may, in its sole discretion, terminate this Design-Build Contract by written notice to the Design- Build Contractor at the earliest possible time under the circumstances. § A.13.8 SEVERABILITY § A.13.8.1 If any provision of the Design-Build Contract is construed or held to be illegal, invalid, void, voidable, or unenforceable, this will not affect the legality, validity, or enforceability of any of the remaining provisions in the Design-Build Contract. The illegal, invalid, or unenforceable provision will be deemed stricken and deleted, but all other provisions shall continue in full force and effect as if the illegal, invalid, or unenforceable provisions had never been incorporated. § A.13.9 SOVEREIGN RAMUNTTY § A.13.9.1 Except as provided for in Tex. Loc. Gov't Code § 262.007, the Design-Build Contract shall be expressly made subject to the Owner's Sovereign Immunity from suit pursuant to Title 5 of the Texas Civil Practices and Remedies Code, and all applicable federal and State of Texas laws. The parties expressly agree that no provision of the Design-Build Contract is in any way intended to constitute a waiver of any immunities from suit or from liability that the Owner has by operation of law. § A.13.10 AMENDMENTS AND CHANGES IN THE LAW §A.13.10.1 No modification, amendment, innovation, renewal, or other alteration of the Design-Build Documents shall be effective, unless mutually agreed upon in writing and executed by the parties hereto. Any alteration, addition, or deletion to the terms of the Design-Build Documents that are required by changes in federal or state law are automatically incorporated herein without written amendment to the Design-Build Contract and shall be effective on the date designated by said law. If a change in federal or state law causes in increase or decrease in the Contract Sum and/or Contract Time, the Owner shall issue a change order as agreed to by the parties in accordance with Section A.1.2.2. § A.13.11 COUNTERPARTS, NUMBER/GENDER AND HEADINGS § A.13.11.1 This Design-Build Contract may be executed in multiple counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Words of any gender used in the Design- Build Contract shall be held and construed to include any other gender. Any words in the singular shall include the plural and vice versa, unless the context clearly requires otherwise. Headings herein are for the convenience of reference only and shall not be considered in any interpretation of the Design-Build Contract. § A.13.12 INDEPENDENT CONTRACTOR § A.13.12.1 The Design-Build Contractor, including its employees, agents, representatives, licensees, or any other person or entity directly or indirectly performing Work under the Design-Build Contract or supplying materials or equipment under the Design-Build Contract on the Design-Build Contractor's behalf, is an independent contractor and not an agent, servant, joint enterprise, or employee of the Owner, and is responsible for its own acts, omissions, Init. AIA Document A141 TO -2004 Exhibit A. Copyright @ 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA ' Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 32 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.10003~851 which expLr ~ e14 6/2/2009, and is not for resale. User Notes: 1r (1162032265) forbearance, negligence, and deeds, and for those of its employees, agents, and representatives in conjunction with the performance of services under the Design-Build Contract, and shall be specifically responsible for sufficient supervision and inspection to ensure compliance in every respect with the requirements of the Design-Build Documents. There shall be no contractual relationship between any Contractor, Subcontractor, Sub-subcontractor, agent, employee, or supplier of the Design-Build Contractor and the Owner by virtue of the Design-Build Contract. This Section A.13.12.1 shall not be for the benefit of any other party other than the Owner and the Design-Build Contractor. § A.13.13 CONTRACTING § A.13.13.1 The Design-Build Contractor may enter into agreements with Contractors for the delivery of goods or services or for the performance of portions of the Work as provided for herein, subject to the limitations herein. The costs of all contracted services are included in the amounts payable to the Design-Build Contractor herein. Contracts, if any, entered into by the Design-Build Contractor shall be in writing and subject to all requirements herein. The Design-Build Contractor agrees that it will be solely responsible to the Owner for the performance of the Design-Build Contract, unless otherwise specifically provided herein. The Design-Build Contractor shall pay all Contractors in a timely manner. The Owner shall have the right to prohibit the Design-Build Contractor from using any Contractor, subject to the limitations contained in the Design-Build Documents. § A.13.14 PROMPT PAYMENT ACT § A.13.14.1 The Design-Build Contractor agrees that a temporary delay in making payments due to the Owner's accounting and disbursement procedures shall not place the Owner in default of the Design-Build Contract and shall not render the Owner liable for interest or penalties, provided such delay shall not exceed thirty (30) days after its due date. Any payment not made within thirty (30) days of its due date shall bear interest in accordance with Chapter 2251 of the Texas Government Code. § A.13.15 COMPLIANCE WITH LAWS § A.13.15.1 In providing Work and/or services required by the Design-Build Contract, the Design-Build Contractor must observe and comply with all applicable federal, state, and local statutes, codes, ordinances, rules, and regulations. The Design-Build Contractor shall be responsible for ensuring its compliance with any laws and regulations applicable to its business, including maintaining any necessary licenses and permits. § A.13.16 THIRD PARTIES § A.13.16.1 The obligations of each party to the Design-Build Contract shall inure solely to the benefit of the other party, and no other person or entity shall be a third party beneficiary of the Design-Build Contract or have any right to enforce any obligation created or established under the Design-Build Contract. ARTICLE A.14 TERMINATION OR SUSPENSION OF THE DESIGN/BUILD CONTRACT § A.14.1 TERMINATION BY THE DESIGN-BUILDER § A.14.1.1 The Design-Builder may terminate the Design-Build Contract if the Work is stopped for a period of thirty (30) consecutive days through no act or fault of the Design-Builder or a Contractor, Subcontractor, Suppliers or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Design-Builder, for any of the following reasons: .1 issuance of an order of a court or other governmental or public authority or agency having jurisdiction which requires all Work to be stopped; .2 an act of government, such as a declaration of national emergency which requires all Work to be stopped; .3 the Owner has failed to make payment to the Design-Builder in accordance with the Design-Build Documents; or .4 the Owner has failed to furnish to the Design-Builder promptly, upon the Design-Builder's request, reasonable evidence as required by Section A.2.2.8. § A.14.1.2 The Design-Builder may terminate the Design-Build Contract if, through no act or fault of the Design- Builder or a Contractor, Subcontractor, Supplier or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Design-Builder, repeated suspensions, delays or interruptions of the entire Work by the Owner, as described in Section A.14.3, constitute in the aggregate more than one -hundred (100%) percent of the total number of days scheduled for completion, or sixty (60) days in any 365-day period, whichever is less. Init. AIA Document A141 TM -2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 33 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/212009, and is not for resale. User Notes: 11' 15 (1162032265) § A.14.1.3 If one prior of the reasons described in Sections A. 14. 1.1 or A.14.1.2 exists, the Design-Builder may, upon seven days' written notice to the Owner, terminate the Design-Build Contract and recover from the Owner payment for Work executed and for proven loss with respect to materials, equipment, tools, and construction equipment and machinery, including reasonable overhead, profit and damages which shall be limited to that portion of the Work already completed on the project. The Design-Builder shall submit to the Owner for review a detailed pay request with sufficient documentation reflecting work performed, goods and/or services provided and any and all loses or damages sustained. The Owner will review the pay request to determine if such costs are reasonable. If Owner accepts and agrees to pay, in whole or in part, the costs provided therein, the Owner will make payment to the Design-Builder in accordance with the Design-Build Documents, subject to approval by the Commissioners Court. If the pay request is not resolved to the satisfaction of the Design-Builder then the Design-Builder may submit a claim pursuant to Article A.4. § A.14.1.4 If the Work is stopped for a period of sixty (60) consecutive days through no act or fault of the Design- Builder or a Contractor, Subcontractor or Supplier or their agents or employees or any other persons performing portions of the Work under a direct or indirect contract with the Design-Builder because the Owner has persistently failed to fulfill the Owner's obligations under the Design-Build Documents with respect to matters important to the progress of the Work, the Design-Builder may, upon seven (7)additional days' prior written notice to the Owner, terminate the Design-Build Contract and recover from the Owner as provided in Section A. 14.1.3. § A.14.2 TERMINATION BY THE OWNER FOR CAUSE § A.14.2.1 The Owner may terminate the Design-Build Contract if the Design-Builder: .1 persistently or repeatedly refuses or fails to supply enough properly skilled workers or proper materials or supplies; .2 fails to make payment to Contractors or Suppliers for services, materials, supplies or labor in accordance with the respective agreements between the Design-Builder and the Architect and Contractors; .3 persistently disregards laws, codes, ordinances or rules, regulations or orders of a public or governmental authority or agency having jurisdiction; or .4 otherwise is guilty of a substantial or material breach of a provision of the Design-Build Documents. § A.14.2.2 When any of the above reasons exist, the Owner may in the sole discretion and without prejudice to any other rights or remedies of the Owner and after giving the Design-Builder and the Design-Builder's surety, if any, seven (7) days' prior written notice, terminate employment of the Design-Builder and may, in the sole discretion subject to any prior rights of the surety: .1 take possession of the site and of all materials, equipment, tools, and construction equipment and machinery thereon owned by the Design-Builder; .2 accept assignment of contracts, subcontracts, leases or other agreements necessary to complete the work including those pursuant to Section A.5.5.1; and .3 complete the Work by whatever reasonable means or method the Owner may deem expedient. Upon request of the Design-Builder, the Owner shall furnish to the Design-Builder a detailed accounting of the costs incurred by the Owner in completing the Work. § A.14.2.3 When the Owner terminates the Design-Build Contract for one (1) of the reasons stated above in Section A.14.2.1, the Design-Builder shall not be entitled to receive further payment until the Work is completed and fully performed. In the event that the Design-Build contract is terminated for cause, and such cause is found not to exist, the termination by the Owner will automatically convert to a termination by the Owner for convenience. § A.14.2.4 If the unpaid balance of the Contract Sum exceeds costs of completing the Work and other damages incurred by the Owner, , such excess shall be paid to the Design-Builder. If such costs and damages exceed the unpaid balance, the Design-Builder shall pay the difference to the Owner upon request by the Owner. This obligation will survive termination of the Design-Build contract. § A.14.3 SUSPENSION BY THE OWNER FOR CONVENIENCE § A.14.3.1 The Owner may, without cause, order the Design-Builder in writing to suspend, delay or interrupt the Work in whole or in part for such period of time as the Owner may determine or deem necessary or appropriate. Inst. AIA Document A141 TO -2004 Exhibit A. Copyright @ 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 34 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08118/2008 under Order No.10003585 6_1 which. expires on 6/2/2009, and is not for resale. User Notes: l 4j (1162032265) § A.14.3.2 The Contract Sum and Contract Time shall be adjusted for increases in the cost and time caused by suspension, delay or interruption as described in Section A.14.3.1. An adjustment of the Contract Sum shall include reasonable profit after review and approval of such by the Owner. No adjustment shall be made to the extent: .1 that performance is, was or would have been so suspended, delayed or interrupted by another cause for which the Design-Builder is responsible; or .2 that an equitable adjustment is made or denied under another provision of the Design-Build Contract. § A.14.4 TERMINATION BY THE OWNER FOR CONVENIENCE § A.14.4.1 The Owner may, at any time, terminate the Design-Build Contract for the Owner's convenience and without cause. § A.14.4.2 Upon receipt of written notice from the Owner of such termination for the Owner's convenience, the Design-Builder shall: .1 cease operations and performance of the Design-Build contract as directed by the Owner in the notice; .2 take actions necessary, or that the Owner may direct, for the protection and preservation of the Work; and .3 except for Work directed to be performed prior to the effective date of termination stated in the notice, terminate all existing contracts and purchase orders and enter into no further contracts and purchase orders unless specifically directed otherwise in the notice. § A.14.4.3 In the event of termination for the Owner's convenience prior to commencement of construction, the Design-Builder shall be entitled to receive payment for design services performed, costs incurred by reason of such termination and reasonable overhead and profit on design services not completed. In case of termination for the Owner's convenience after commencement of construction, the Design-Builder shall be entitled to receive payment from the Owner on the same basis as provided in Section A.14.1.3. § A.14.5 TRANSITION SERVICES REQUIRED OF DESIGN-BUILD CONTRACTOR § A.14.5.1 Upon notice of termination, suspension, cancellation, or expiration of the Design-Build Contract, the Owner shall immediately have the right to audit any and all records of the Design-Build Contractor relating to the Design-Build Contract. Moreover, upon the termination, suspension, cancellation, or expiration of the Design-Build Contract, the Design-Build Contractor agrees to transition the Work and/or services provided under the Design- Build Contract in a cooperative manner and provide anything requested from the Owner at no additional cost, including, but not limited to, the following: (I) All Work and services documentation, including all records, books, and data reasonably related to the Design-Build Contract, maintained in accordance with general accounting procedures and identified in a complete, neat, and orderly manner; (ii) A good faith pledge to cooperate with the Owner upon transition of the Work and/or services to another Design-Build Contractor or a contractor or the Owner or separate contractors of the Owner; (iii) Records, books, and data, including electronic data, in a format compatible with the Owner's information technology capabilities, or in a format compatible with a succeeding Design-Build Contractor's or contractor's or separate contractor's information technology capabilities, as determined by the Owner; (iv) Final accounting of all income derived from the Design-Build Contract; (v) Downloading and removal of all the Owner's information from the Design-Build Contractor's equipment and software; and (vi) Removal of the Design-Build Contractor's services without degradation or other adverse affect on the Work. This Section A.14.5.1 shall survive termination, suspension, cancellation, or expiration of the Design- Build Contract. ARTICLE A.15 ASSURANCES OF THE DESIGN-BUILD CONTRACTOR § A.15.1 In providing the Work and/or services required by this Design-Build Contract, the Design-Build Contractor agrees to observe and comply with all requirements, licenses, legal certifications, or inspections required for the Work, services, facilities, equipment, materials, or supplies and all applicable federal, state, and local laws, statutes, codes, ordinances, rules, regulations, and orders. The Design-Build Contractor's failure to comply with this Section A.15.1 shall be treated as a default and/or breach of the Design-Build Contract. §A.15.2 The Design-Build Contractor assures that it will not transfer or assign its interest in the Design-Build Contract without the prior written consent of the Owner and formal approval of the Commissioners Court. The Design-Build Contractor understands that in the event that all or substantially all of the Design-Build Contractor's assets are acquired by another entity, the Design-Build Contractor is still obligated to fulfill the terms and conditions AIA Document A141 TM -2D04 Exhibit A. Copyright 02D04 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 35 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1 0003585561 which expires on 6/2/2009, and is not for resale. User Notes: r 7 (1162032265) of the Design-Build Contract. § A.15.3 The Design-Build Contractor, by acceptance of the terms of the Design-Build Contract, agrees and ensures that employees or agents providing Work and/or services under the Design-Build Contractare duly licensed and/or qualified to perform the required Work and/or services. The Design-Build Contractor further agrees and ensures that all licenses or permits necessary to perform the required Work and/or services are current and that the Owner will be notified immediately if such licenses or permits become invalid during performance of the Design-Build Contract. § A.15.4 The Design-Build Contractor assures that no person will, on the grounds of race, creed, color, handicap, disability, national origin, sex, political affiliation, or beliefs, be excluded from, be denied the benefit of, or be subjected to discrimination under any activity funded in whole or part under this Design-Build Contract. The Design-Build Contractor agrees to comply, if applicable, with all federal and state statutes relating to nondiscrimination, including, but not limited to: Title VI of the Civil Rights Act of 1964 (P.L. 88-352), which prohibits discrimination on the basis of race, color, or national origin; Title IX of the Education Amendments of 1972, as amended (20 U.S.C. SS 1681-1683, and 1685-1686), which prohibits discrimination on the basis of sex; Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C.S 794), which prohibits discrimination on the basis of handicaps; the Americans with Disabilities Act of 1990 (P.L. 101-336), which prohibits discrimination on the basis of disabilities; the Age Discrimination Act of 1975, as amended (42 U.S.C. SS 6101-6107), which prohibits discrimination on the basis of age; the Drug Abuse Office and Treatment Act of 1972 (P.L. 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (P.L. 91-616), as amended, relating to nondiscrimination on the basis of alcohol and drug abuse patient records; and the requirements of any other nondiscrimination statute(s) which may apply. § A.15.5 The Design-Build Contractor agrees to adhere to confidentiality requirements, as applicable, for the Work and/or services performed for the Owner under the Design-Build Documents, and any other confidentiality provisions or laws, whether federal or state, relating to the Work and/or services being providing hereunder. § A.15.6 The Design-Build Contractor assures that it will not use any information, documents, or data provided to the Design-Build Contractor by the Owner for any proprietary purposes and shall not copy, sell, exchange, disclose, or otherwise provide to others or use any information, documents, or data reasonably related to this Design-Build Contract for its own proprietary interests. § A.15.7 The Design-Build Contractor shall comply with all federal, state, and local laws, statutes, ordinances, rules, and regulations in effect as of the effective date of the Design-Build Contract, and orders and decrees of any courts or administrative bodies or tribunals in any matter affecting the performance of the Design-Build Contract, including, without limitation, workers' compensation laws, minimum and maximum salary and wage statutes and regulations, licensing laws and regulations, and non-discrimination laws and regulations. When required, the Design-Build Contractor shall furnish to the Owner satisfactory proof of compliance therewith. § A.15.8 The Design-Build Contractor shall have a drug and alcohol free work place policy. The Design-Build Contractor shall also require that all contracts between itself and Contractors performing Work and/or services under the Design-Build Contract also comply with said requirements. § A.15.9 Pursuant to Article 2.45 of the Business Corporation Act, Texas Civil Statutes, which prohibits the Owner from entering into a contract with a corporation that is delinquent in paying taxes under Chapter 171 of the Texas Tax Code, the Design-Build Contractor, by executing this Design-Build Contract, hereby certifies that it is not delinquent in its Texas franchise tax payments, or that it is exempt from, or not subject to such a tax. A false statement concerning the Design-Build Contractor's franchise tax status shall constitute a default or breach of this Design-Build Contract and the Owner may terminate the Design-Build Contract for cause at the sole option of the Owner. §A.15.10 The Design-Build Contractor certifies that neither it nor any of its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in the Design- Build Contract by any federal or state department or agency. AIA Document A141 TM - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 36 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which ex Tres on 6/2/2009, and is not for resale. User Notes: 1 (1162032265) §A.15.11 The Design-Build Contractor shall pay all Contractors and suppliers in a timely manner. The Owner shall have no liability to any Contractors, Subcontractors, Sub-subcontractors, or suppliers in the event the Design-Build Contractor does not pay or delays payment to any Contractors. At termination or expiration of the Design-Build Contract, the Design-Build Contractor shall deliver to the Owner an affidavit of all bills paid. Final payment may, in the sole discretion of the Owner, be contingent upon receipt of such affidavits as resolution of all accounting for which the Owner is or may be liable under the Design-Build Contract. § A.15.12 Failure of the Design-Build Contractor to comply with any of these assurances or any other requirements specified within the Design-Build Document will put the Design-Build Contractor in default and/or breach of the Design-Build Contract and may result, at the sole discretion of the Owner, in the withholding of payments and the withholding of future awards, in addition to any other remedies permitted by law. § A.16 ACCEPTANCES AND SIGNATORY WARRANTY § A.16.1 The duly authorized representatives of the Design-Build Contractor and the Owner accept the terms of the Design-Build Contract in full. § A.16.2 The person or persons signing and executing the Design-Build Contract on behalf of the Design-Build Contractor, or representing themselves as signing and executing the Design-Build Contract on behalf of the Design- Build Contractor, do hereby warrant and guarantee that he, she, or they have been duly authorized by the Design- Build Contractor to execute the Design-Build Contract on behalf of the Design-Build Contractor and to validly and legally bind the Design-Build Contractor to all terms, conditions, and provisions of the Design-Build Documents. The Design-Build Contractor shall furnish to the Owner a corporate resolution authorizing signatory authority. Init. AIA Document A141 TM - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA: Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 37 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: (1162032265) Additions and Deletions Report for AIA® Document A 141 TM - 2004 Exhibit A This Additions and Deletions Report, as defined on page 1 of the associated document, reproduces below all text the author has added to the standard form AIA document in order to complete it, as well as any text the author may have added to or deleted from the original AIA text. Added text is shown underlined. Deleted text is indicated with a horizontal line through the original AIA text. Note: This Additions and Deletions Report is provided for information purposes only and is not incorporated into or constitute any part of the associated AIA document. This Additions and Deletions Report and its associated document were generated simultaneously by AIA software at 13:29:51 on 08/18/2008. PAGE f t, f M vM -1-J r~ i r~ u t~ Brazos County 300 East 26`s Street Bryan, Texas 77803 Greenway Constructors, Inc.- Patterson Architects P.O. Box 11184 Colleee Station, Texas 77842 PAGE 14 § A.4.2.5 aeeer-daP Claim. PAGE 15 § A.4.3.2 The parties shall endeavor to resolve their Claims by mediation which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect at the time of the mediation. Request for mediation shall be filed in writing with the other party to the Design-Build Contract and with the . National Mediation Academy. The request may be made concurrently with the filing of a demand for arbitration or other binding dispute resolution proceedings but, in such event, mediation shall proceed in advance thereof or of legal or equitable proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. § AAAA Claims, except those waived as provided for in Sections A.4.1.10, A.9.10.4 and A.9.10.5, for which initial decisions have not become final and binding, and which have not been resolved by mediation but which are subject to arbitration pursuant to Sections 6.2 and 6.3 of the Agreement or elsewhere in the Design-Build Documents, shall be decided by arbitration which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect at the time of the arbitration. The demand for arbitration shall be filed in writing with the other party to the Design-Build Contract and with the "^n°^^^^ r-bi =tiara A sseei gen.National Arbitration Institute of the National Mediation Academy. PAGE 24 Additions and Deletions Report for AIA Document A141TM - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 1 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/ 008,knoer Order No 10003585561 which expires on 6/2/2009, and is not for resale. User Notes: + 'F' OCoc (1162032265) § A.10.3.1 If reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance, including but not limited to asbestos or polychlorinated biphenyl (PCB), encountered on the site by the Design-Builder, the Design-Builder shall, upon r-eeegnizingrecognition or reasonable notice of the condition, immediately stop Work in the affected area and promptly report the condition to the Owner-.Owner in writing. § A.10.3 thp dnte-of the Agreement, is net diselesed in the Design damage, deaah as deseribed in Sestion A. 10.3.1 and has not been rendered ham4ess, provided that sueh Claim, damage, less or expense is; -na-Fibut-able to badily injury, siekness, disease or death or to iRjufy to or destFuefien of tangible property (other thaR the Work itself) to the extent that sueh negligenee of the Design f Gentmeters, Subeenliraeters, Arehiteet, Arehiteet's eansultants and the agents and empleyees -of any ef them-. § A.10.4 The Owner shall not be responsible under Section A.10.3 for materials and substances brought to the site by the Design-Builder unless such materials or substances were required by the Design-Build Poeuments:Documents and the Design-Builder advises the Owner in writing of the danger or hazard of such materials or substances. § A.10.5 if-, without negligenee an the part of the Design Builder-, the Design Builder is held liable for the east ef Build Daeuments, the Owner- shaH iadernnif~~ the Design Builder fOF all sest and expense thereby ineuFFed. $ A.10.6.2 The Design-Builder shall promptly report in writing to the Owner all accidents arising out of or in connection with the work which caused or may have caused death, personal iniurv, or property damage, giving full details of the accident and statement(s) of witnesses. In addition, if death, serious personal injury, or serious property damage are caused or may have been caused, the accident shall be reported immediately by telephone or messenger to the Owner. S A.10.6.3 For purposes of this provision, the term "Hazardous Materials" shall mean and refer to any wastes, materials or other substances of any kind or character that are known or become known or regulated as hazardous or toxic wastes or substances or which require special handling or treatment, under any applicable federal, state, or local law, code ordinance rule regulation, or order. The Design-Build Contractor shall be responsible for any and all Hazardous Materials brought on site by the Design-Build Contractor, its Contractors, Subcontractors, Sub- subcontractors or suppliers, or any of their agents or employees, or any other persons or entities performing portions of the Work under direct or indirect contract with the Design-Build Contractor. The Design-Build Contractor shall not be responsible for any Hazardous Materials brought on site by the Owner or the Owner's separate contractors or for any Hazardous Materials pre-existing on site as of the date of the Notice to Proceed on the Design Services issued by the Owner. However, the Design-Build Contractor shall notify the Owner in writing and stop Work immediately if it suspects that any Hazardous Materials are pre-existing on site. The Owner shall handle, treat, or remove or cause to be handled, treated, or removed any Hazardous Materials that are pre-existing on site in a time and manner as to avoid unreasonable delay in the Work. Except for the foregoing, the Design-Build Contractor shall prevent the presence, use, generation, release, discharge, storage, disposal, or transportation of Hazardous Materials on, under, in, above, or from the Project in nothing other than in strict compliance with all applicable federal, state, and local laws, codes, ordinances, rules, regulations and orders. The Design-Build Contractor shall indemnify, defend, and hold the Owner harmless from and against: (a) any loss, cost, expense, claim, or liability arising out of any investigation, monitoring, judgment, assessment, clean-up, containment, removal, storage, or restoration work (herein referred to as "Remedial Work") required by, or incurred by, the Owner or any other person, party, or entity in a reasonable belief that such Remedial Work is required by any applicable federal, state, or local law, code, ordinance, rule, regulation, or order, or by any governmental or public agency, authority, or political Additions and Deletions Report for AIA Document A141 TM - 2004 Exhibit A. Copyright @ 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIAs 2 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: „ (1162032265) subdivision having jurisdiction over the construction area; and (b) any claims of third parties for loss, injury, expense or damage arising out of the presence release or discharge of any Hazardous Materials on, under, in above to or from the construction area; to the extent the Design-Build Contractor is responsible for and/or liable for hereunder. In the event any Remedial Work is so required under any applicable federal state, or local law, code, ordinance rule regulation or order, the Design-Build Contractor shall promptly perform or cause to be performed such Remedial Work in compliance with such law, code ordinance rule regulation or order at the Design-Build Contractor's sole cost and expense In the event the Design-Build Contractor shall fail to commence the Remedial Work in a timely fashion or shall fail to prosecute diligently the Remedial Work to completion, such failure shall constitute an event of default on the part of the Design-Build Contractor under the terms of this Contract, and the Owner, in addition to any other rights or remedies afforded hereunder, may, but shall not be obligated to, cause the Remedial Work to be performed and the Design-Build Contractor shall promptly reimburse the Owner for the cost and expense thereof upon demand by the Owner. The Design-Build Contractor's duty to indemnify, defend, and hold harmless the Owner as described herein and duty to perform or cause to be performed any Remedial Work as described herein is limited to the Hazardous Materials brought on site by the Design-Build Contractor, its Contractors Subcontractors Sub-subcontractors or suppliers or any of their agents or employees, or any other persons or entities performing portions of the Work under direct or indirect contract with the Design-Build Contractor, and shall not be construed to include any Hazardous Materials brought on site by the Owner or the Owner's separate contractors or for any Hazardous Materials pre-existing on site as of the date of the Notice to Proceed on the Design Services issued by the Owner, unless the Design-Build Contractor suspected that such Hazardous Materials were pre-existing prior to the issuance of the Notice to Proceed on the Design Services and failed to notify the Owner in accordance with this Section A 10 3 3 or knew or should have known that reasonable precautions of such Hazardous Materials would be inadequate to prevent foreseeable bodily injury or death to persons and failed to notify the Owner in accordance with Section A.10.3.1. $ A.1 08 4 The Owner shall not be responsible under Section A 10 6 3 for materials and substances brought to the site by the Design Build Contractor, unless such materials or substances were required by the Design-Build Documents and the Design Build Contractor advised the Owner in writing of the dangers or hazards of such materials or substances. 5 A.10.7 WATER PRECAUTIONS § A.10.7.1 The Design-Build Contractor shall keep all parts of the site including excavations, free from any accumulation of water, no matter the source or cause. § A.10.7.2 The Design-Build Contractor shall dispose of water in such a manner as to not or will not endanger public health or cause damage or expense to any person or property. The Design-Build Contractor shall also comply with the requirements of any public agencies or authorities having jurisdiction over such matters. If sewers and/or streets are allowed to be used for drainage or disposal of water during construction the Design-Build Contractor shall maintain and leave such satisfactorily clean upon completion of the Work. § A.10.8 SIGNS 4 A.10.8.1 The Design-Build Contractor shall not erect or place signs billboards or advertisements anywhere on or above the Proiect site except as required by law or under Contract. §A.10.8.2 The Design-Build Contractor shall furnish and maintain all necessary signs or symbols required for performance of the Contract and as required by law. PAGE 27 § A.11.4.1.3 if the property -es deduetibles, the Owner- shall pay easts not eaver-ed besause of sueh miles. § A.11.4.1.5 Partial occupancy or use in accordance with Section A.9.9 shall not commence until the insurance company or companies providing property insurance have consented to such partial occupancy or use, by endorsement or otherwise. The Owner and the Design-Builder shall take reasonable steps to obtain consent of the insurance company or companies and shall, without mutual written consent, take no action with respect to partial occupancy or use that would cause cancellation, lapse or reduction of insurance. If during the project construction period the Owner insures properties real or personal or both at or adjacent to the site by property insurance under policies separate from these insuring the project or if after final payment property insurance is to be provided on Additions and Deletions Report for AIA Document At 41 TM - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 3 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No. 10003585561 which expires on 6/2/2009, and is not for resale. User Notes: fir,^4 a I 1 (M a (1162032265) the completed project through a policy or policies other than those insuring the project during the construction period The Owner shall waive all rights in accordance with the terms of Section A 11.4.7 for damages caused by fire or other causes of loss covered by this separate property insurance All separate policies shall provide this waiver of subrogation by endorsement or otherwise. § A.11.4.3 Loss of Use Insurance. The Owner, at the Owner's option, may purchase and maintain such insurance as will insure the Owner against loss of use of the Owner's property due to fire or other hazards, however caused. The design Ownff waives all rights of aefien against the Design Builder-, Ar-ehiteet, the Design Builder's et4er- hazards, professionals, if any, Gentmeter-s and Subeentr-aeter-s for- less of use of the Owner-'s property, inela4i*g -al losses due to fiFe or other- however- eaused. PAGE 28 § A.11.4.9 if r-equiFed in b by a party in > less, give bond fef pr-epef peffer-manee ef the OwaeF'S Elaties. The east-ef r-eqt4ed bends shall be ehar-ged agains Ownef sh 1 Elis4ibute in aeeer-danee with sueh agr-eefaeat as the par-ties in intefest may r-eaeb. if after- sueh less no ethef speeial agreement is made and unless the Owner- teFminates the b damaged b Change in the 3AI t aeeefdanee 'th A'•t' 1 A.7. § A.12.1.1 If a portion of the Work is covered contrary to the Owner's or a governmental or public authority's request, or to requirements specifically expressed in the Design-Build Documents, it must be uncovered for the Owner's examination and be replaced at the Design-Builder's expease without b sole cost and expense without change to or addition to the Contract Time. § A.12.1.2 If a portion of the Work has been covered in which the Owner or a governmental or public authority has not specifically requested to examine prior to its being covered, the Owner or a governmental or public authority may request to see such Work and it shall be uncovered by the Design-Builder. If such Work is in accordance and/or compliance with the Design-Build Documents, the costs of uncovering and replacement shall, by appropriate Change Order, be at the Owner's expense. If such Work is not in accordance with rl, Tles;.,+. 72,,:1.1 .,...,...o..t.. , pie ~~rand/or compliance with the Design-Build Documents correction repair or replacement of the work shall be at the Design-Builder's expense unless the condition was caused by the Owner- rate eofit "t in whie`' event the Owner- shall b r"s ble Fe"ate, t of such east^ Owner. § A.12.2.1.1 The Design-Builder shall promptly GafFeet correct repair or replace the Work rejected by the Owner or other governmental or public authority with such power and authority to request or demand such correction, repair or replacement of work, failing to conform to the requirements of the Design-Build Documents, whether discovered before or after Substantial Completion and whether or not fabricated, installed or completed. Costs of b sue'' r-eoted W t , a add t;, ~t testing, be at the Design n orrecting repairingor replacing j a uildefLsc such rejected or non conforming Work including additional testing and inspections shall be at the Design-Builder's sole cost and expense. PAGE 29 § A.12.2.2.1 In addition to the Design-Builder's obligations under Section A.3.5, if, within one year after the date of Substantial Completion or after the date for commencement of warranties established under Section A.9.8.5 or by terms of an applicable special warranty required by the Design-Build Documents, any of the Work is found to be defective or not in accordance or compliance with the requirements of the Design-Build Documents, the Design- Builder shall eefreet correct repair or replace it promptly after receipt of written notice from the Owner to do so but Additions and Deletions Report for AIA Document A141 TM - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reservea. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 4 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. (1162032265) User Notes: I I a not later than thirty (30) days thereof unless the Owner has previously given the Design-Builder a written awe r-ease-n-able. time ,1„Fin„ that per4ea after- -eeeipt e specific acceptance of such condition. Correction, repair or replacement of defective or non-conforming work shall begin within thirty (30) days of the receipt of written notice from the Owner and shall be completed within a reasonable time thereafter but not later than six (6) months thereof. If the Design-Builder fails to begin work to correct repair or replace non-conforming Work within thirty (30) days after receipt of written notice from the Owner, the Owner may correct it in accordance with Section A.2.5. This obligation under this section shall survive acceptance of the work under the Design-Builder Contract and termination of same. § A.12.2.2.3 The year- r a for- t of Wer-k shall not be xteaded b ee fi e 3xr^r1. ..f^ e 1'.. he by Design Builder- p „t to this Section A 122 § A.12.2.3 The Design-Builder shall remove at its sole cost and expense from the site portions of the Work which that are not in accordance or compliance with the requirements of the Design-Build Documents and are neither °~corrected, repaired or replaced by the Design-Builder nor accepted by the Owner. § A.12.2.4 The Design-Builder shall bear the cost of eeffeetirtgcorrecting, repairing or replacing destroyed or damaged construction, whether completed or partially completed, of the Owner or separate contractors caused by the Design-Builder's uoFFee4 correction, repair or replacement or removal of Work which is not in accordance or compliance with the requirements of the Design-Build Documents. § A.12.2.5 Nothing contained in this Section A.12.2 shall be construed to establish a period of limitation with respect to other obligations the Design-Builder might have under the Design-Build Doeuments. Establishment of the one year- •ed for- ^ eefie . of Work aes^r1,oa in geetien A 11 4 2 Documents but relates only to the specific obligation of the Design-Builder to eefFeet correct, repair or replace the Work, and has no relationship to the time within which the obligation to comply with the Design-Build Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Design-Builder's liability with respect to the Design-Builder's obligations other than specifically to eeffeet the Wefk correct, repair or replace the Work. $ A.12.2.6 Any cost of repairs to any building not covered by insurance proceeds shall be paid by the Design-Builder. If the Owner must make any repairs such costs will be deducted from the Contract Sum otherwise be due and payable to the Owner upon request. § A.12.3.1 If the Owner prefers to accept Work that is not in accordance or compliance with the requirements of the Design-Build Documents, the Owner may do so instead of requiring its removal a d-and/or correction, in which case the Contract Sum will be equitably adjusted by Change CWer-.-Order if appropriate as determined by the Owner. Such adjustment shall be effected whether or not final payment has been ffhtde-made to the Design-Builder § A.13.1.1 The validity and interpretation of the Design-Build Contract and the rights and obligations of the parties hereunder shall be governed by the law of the place where the Project is located. The Design-Build Contract is performable and enforceable in Brazos County Texas where the principal office of the Owner is located and where the work shall be performed and the state courts of Brazos County shall be the sole and exclusive venue for any litigation, special proceedings or other proceeding as between the parties that may be brought or arise out of in connection with or by reason of the Design-Build contract. PAGE 30 Additions and Deletions Report for AIA Document A141 TM -2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® rJ Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2088 under Order No..1000358556_1 which expires on 602009, and is not for resale. User Notes: (1162032265) § A.13.3.1 Wr-Aten-ae4eeAny notice to be given under the Design-Build Contract shall be deemed to have been dt4y wkisii it was e OF ff SORE BY b -w P_ 17 611 - b natie ~Tgiven if reduced to writing and delivered by a nationally recognized personal delivery or courier service or mailed by certified or registered mail return receipt requested postage pre-paid to the party's representative at the addresses set forth herein or to such other address as either party may Vecify in writing unless otherwise provided herein Such notice shall be deemed to have been given five (5) days subsequent to the date it was so delivered or mailed. 4 A.13.3.2 The Design Build Contractor may not assign its rights and duties under the Design-Build Contract without the prior written consent of the Owner and formal approval of the Commissioners Court even if such assignment is due to a change in ownership or affiliation Anv assignment attempted without such prior consent and approval shall be null and void and the Design-Build Contractor shall nevertheless remain legally responsible for all obligations under the Design-Build Contract Such consent and approval shall not relieve the Design-Build Contractor of liability in the event of a default by its assignee. § A.1 33 3 The Design-Build Contractor shall not assign any monies due or to become due hereunder without the prior written consent of the Owner and formal approval of the Commissioners Court, and of the Design-Build Contractor's surety. A copy of such consent of the surety, together with a copy of the assignment shall be promptly submitted to the Owner for its records In the event the Design-Build Contractor assigns its rights to all or any part of any monies due to or to become due under this Design-Build Contract the instrument of assignment must contain a clause substantially to the effect that it is agreed by the parties that the right of assignees in and to any monies due or to become due to the Design-Build Contractor under the Design-Build Contract shall be subject to prior liens and claims of all persons firms and corporations (1) for services rendered-, (2) for payment of all laborers and mechanics for labor performed; (3) for payment of all materials and equipment furnished and payment of all materials and equipment used or rented in the performance of the Work• and (4) for payment of any liens, claims, or amounts due to any government entity or any of their funds Any and all payments to an assignee shall constitute full satisfaction and accord to the Design-Build Contractor of any and all obligations for which said sums are paid. The Owner shall be released from any and all obligation to pay the Design-Build Contractor such payments, until the Owner receives formal written notice of a change from the Design-Build Contractor and the Design-Build Contractor agrees to indemnify and hold the Owner harmless from and against any and all claims and liabilities arising from the assignment including, but not limited to, payments of any and all monies under the Design-Build Contract to the Design-Build Contractor. § A.13.4.2 No action or failure to act by the Owner or Design-Builder shall constitute a waiver of a right or duty afforded them under the Design-Build Documents, nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed in vffitingwriting by the parties. 4 A.1 34 3 Except as provided for in Section A.9.1 1pursuit of any remedy provided in the Design-Build Contract shall not preclude pursuit of any other remedies herein provided or any other remedies provided by law or equity, including injunctive relief, nor shall pursuit of any remedy herein provided constitute a forfeiture or waiver of any obligation of the defaulting party hereunder or of any damages accruing by reason of the violation of any of the terms ]2rovisions and covenants herein contained No waiver of any term covenant condition, or violation of the Design Build Contract shall be deemed or construed to constitute a waiver of any other violation or breach of any of the terms provisions and covenants herein contained and forbearance to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default. Any waiver of any provision of the Design-Build Contract or violation thereof must be by a written instrument executed by the parties. PAGE 31 § A.13.5.1 Tests, inspections and approvals of portions of the Work required by the Design-Build Documents or by laws, codes, ordinances, rules, regulations or orders of public authorities having jurisdiction over such matters shall be made at an appropriate time. Unless otherwise provided, the Design-Builder shall make arrangements for such tests, inspections and approvals with an independent testing laboratory or entity acceptable to the Owner or with the Additions and Deletions Report for AIA Document A141 TM - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 6 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: /1/ (1162032265) appropriate governmental or public authority, and shall bear all related costs of tests, inspections and approvals. The Design-Builder shall give timely written notice of when and where tests and inspections are to be made so that the Owner may be present for such procedures. § A.13.5.2 If the Owner or governmental or public authorities or agency having jurisdiction determine that portions of the Work require additional testing, inspection or approval not included under Section A.13.5.1, the Owner shall in writing instruct the Design-Builder to make arrangements for such additional testing, inspection or approval by an entity acceptable to the Owner, and the Design-Builder shall give timely written notice to the Owner of when and where tests and inspections are to be made so that the Owner may be present for such procedures. Such costs, except as provided in Section A.13.5.3, shall be at the Owner's expense-.e nse unless otherwise provided for herein. § A.13.5.3 If such procedures for testing, inspection or approval under Sections A.13.5.1 and A.13.5.2 reveal failure of the portions of the Work to comply with requirements established by the Design-Build Documents, all costs made necessary by such failure, including these of repeated pr-eee u the cost of those of repeated procedures for testing inspections and approvals, shall be at the Design-Builder's expense. § A.13.5.4 Required certificates of testing, inspection or approval shall, unless otherwise required by the Design- Build Documents, be secured and maintained by the Design-Builder and promptly delivered to the Owner. § A.13.5.5 If the Owner is to observe tests, inspections or approvals required by the Design-Build Documents, the Owner will do so promptly and, where practicable, at the normal or usual place of testing. § A.13.5.6 Tests or inspections conducted pursuant to the Design-Build Documents shall unless expressly provided otherwise be made promptly to avoid unreasonable delay in the Work. § A.13.6 COMMENCEMENT- OF c,n U goy I -IMITATION ncoinnEQUAL OPPORTUNITY § A.13.6.1 As between the Ownef and Design Builder: eause of aetien sha4l be deemed te have aesfaed in any and all events not later- than sueb date a Substantial Gampletien; .2 Between Substantial Cle' p eeeuning subsequent to the relevant date of Substantial Completion and pr-ier- to issuanee eff the ffiinal A 1' r' for- Payment, ) rr1' ble statute of limi ie shall to r-Ufl and any eaRmnenee eause of aetion shall be deemed to have aeeFued in any and all events fiat laier- thaft the date e ti iv o issuanee of the Fxzz1~z App1xicizc n f9fPayment-; and a4leged eause ef aefien shall be deemed to have aeer-ued in any and all events not later- than the da4e of any aet or- eeFfeetian ef the Work eF failure to eeFFeet the We& by the Design Builder- under- Seetien A. 12.2, er- the date 9 aepaal eafnm~ssian of any atheF aet or- failufe te peffeFm an), duty E)r- obligation by t4e Design BuildeF OF Ownef, whieheve.. „eauF las-t.The Design-Build Contractor shall maintain policies of employment as follows: 6 A.13.6.1.1 The Design-Build Contractor and its Contractors and Subcontractors shall not discriminate against any emloyees or applicants for employment because of race religion color, sex or national origin. The Design-Build Contractor shall take affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard to their race religion color, sex or national origin. Such action shall include, but not be limited to the following: (1) employment upgrading; demotion or transfer; (2) recruitment or recruitment advertising; (3) layoff or termination; (4) rates of pay or other forms of compensation; and (5) selection for training including apprenticeship The Design-Build Contractor agrees to post or station in conspicuous places available to employees and applicants for employment notices setting forth the policies of nondiscrimination. Additions and Deletions Report for AIA Document A141 TM' - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 7 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: a a (1162032265) S A 13 61 2 The Design-Build Contractor and its Contractors and Subcontractors shall, in all solicitations or advertisements for employment placed by them or on their behalf, state that all qualified applicants will receive consideration for employment without regard to race, religion, color, sex, or national origin. § A.13.7 FISCAL FUNDING CLAUSE § A.1 371 Notwithstanding any Rrovisions contained herein the obligations of the Owner under the Design-Build Contract are expressly contingent upon the availability of funding for each item and obligation contained herein for the term of the Design-Build Contract and any extensions thereto. The Design-Build Contractor, any Contractor, any Subcontractor, any Sub-subcontractor, or any other person or entity directly or indirectly employed by the Design Build Contractor or performing Work or supplying materials or equipment on the Design-Build Contractor's behalf, or any other person or entity to whom the Design-Build Contractor may be liable to, shall have no right of action against the Owner in the event the Owner is unable to fulfill its obligations under this Design-Build Contract as a result of lack of sufficient funding for any item or obligation from any source utilized to fund the Design-Build Contract or failure to budget or authorize funding for the Design-Build Contract during the current or future fiscal years In the event that the Owner is unable to fulfill its obligations under the Design-Build Contract as a result of lack of sufficient funding, or if funds become unavailable the Owner may, in its sole discretion, provide funds from a separate source or may, in its sole discretion terminate this Design-Build Contract by written notice to the Design- Build Contractor at the earliest possible time under the circumstances. § A.13.8 SEVERABILITY § A.13.8.1 If any provision of the Design-Build Contract is construed or held to be illegal, invalid, void, voidable, or unenforceable this will not affect the legality, validity, or enforceability of any of the remaining provisions in the Design-Build Contract The illegal invalid or unenforceable provision will be deemed stricken and deleted, but all other provisions shall continue in full force and effect as if the illegal invalid or unenforceable provisions had never been incorporated. § A.13.9 SOVEREIGN Hy UNITY § A.13.9.1 Except as provided for in Tex Loc Gov't Code § 262.007 the Design-Build Contract shall be expressly made subject to the Owner's Sovereign Immunity from suit pursuant to Title 5 of the Texas Civil Practices and Remedies Code and all applicable federal and State of Texas laws. The parties expressly agree that no provision of the Design-Build Contract is in any way intended to constitute a waiver of any immunities from suit or from liability that the Owner has byoperation of law. 4 A.13.10 AMENDMENTS AND CHANGES IN THE LAW § A.13.10.1 No modification amendment innovation renewal or other alteration of the Design-Build Documents shall be effective unless mutually agreed upon in writing and executed by the parties hereto. Any alteration, addition or deletion to the terms of the Design-Build Documents that are required by changes in federal or state law are automatically incorporated herein without written amendment to the Design-Build Contract and shall be effective on the date designated by said law. If a change in federal or state law causes in increase or decrease in the Contract Sum and/or Contract Time the Owner shall issue a change order as agreed to by the parties in accordance with Section A.1.2.2. § A.13.11 COUNTERPARTS, NUMBER/GENDER AND HEADINGS § A.13.11.1 This Design-Build Contract may be executed in multiple counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. Words of any gender used in the Design- Build Contract shall be held and construed to include any other gender. Any words in the singular shall include the plural and vice versa unless the context clearly requires otherwise. Headings herein are for the convenience of reference only and shall not be considered in any interpretation of the Design-Build Contract. § A.13.12 INDEPENDENT CONTRACTOR § A.1 3121 The Design-Build Contractor, including its emploYees agents, representatives, licensees, or any other person or entity directly or indirectly performing Work under the Design-Build Contract or supplying materials or equipment under the Design-Build Contract on the Design-Build Contractor's behalf, is an independent contractor and not an agent servant joint enterprise or employee of the Owner, and is responsible for its own acts omissions forbearance negligence and deeds and for those of its employees agents, and representatives in conjunction with the performance of services under the DesiC n-Build Contract and shall be specifically responsible for sufficient supervision and inspection to ensure compliance in every respect with the requirements of the Design-Build Additions and Deletions Report for AIA Document A141 TM -2004 Exhibit A. Copyright* 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: I I 1 n ')L~ (1162032265) Documents There shall be no contractual relationship between any Contractor Subcontractor, Sub-subcontractor, agent employee or supplier of the Design-Build Contractor and the Owner by virtue of the Design-Build Contract. This Section A.13.12.1 shall not be for the benefit of any other party other than the Owner and the Design-Build Contractor. 6 A.13.13 CONTRACTING $ A.1 3.13.1 The Design-Build Contractor may enter into agreements with Contractors for the delivery of goods or services or for the performance of portions of the Work as provided for herein subject to the limitations herein. The costs of all contracted services are included in the amounts payable to the Design-Build Contractor herein. Contracts if any, entered into by the Design-Build Contractor shall be in writing and subject to all requirements herein The Design-Build Contractor agrees that it will be solely responsible to the Owner for the performance of the Design-Build Contract unless otherwise specifically provided herein. The Design-Build Contractor shall pay all Contractors in a timely manner. The Owner shall have the right to prohibit the Design-Build Contractor from using any Contractor, subject to the limitations contained in the Design-Build Documents. 6 A.13.14 PROMPT PAYMENT ACT $ A.1 3.14.1 The Design Build Contractor agrees that a temporary delay in making payments due to the Owner's accounting and disbursement procedures shall not place the Owner in default of the Design-Build Contract and shall not render the Owner liable for interest or penalties, provided such delay shall not exceed thirty (30) days after its due date Any payment not made within thirty (30) days of its due date shall bear interest in accordance with Chapter 2251 of the Texas Government Code. § A.13.15 COMPLIANCE WITH LAWS 4 A.1 3.15.1 In providing Work and/or services required by the Design-Build Contract the Design-Build Contractor must observe and comply with all applicable federal state and local statutes, codes, ordinances, rules, and regulations The Design-Build Contractor shall be responsible for ensuring its compliance with any laws and regulations applicable to its business including maintaining any necessary licenses and permits. § A.13.16 THIRD PARTIES § A.13.16.1 The obligations of each party to the Design-Build Contract shall inure solely to the benefit of the other party, and no other person or entity shall be a third party beneficiary of the Design-Build Contract or have any right to enforce any obligation created or established under the Design-Build Contract. PAGE 33 § A.14.1.1 The Design-Builder may terminate the Design-Build Contract if the Work is stopped for a period of -30 thirty (30) consecutive days through no act or fault of the Design-Builder or a Contractor, Su ie acAer Subcontractor, Suppliers or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Design-Builder, for any of the following reasons: .1 issuance of an order of a court or other governmental or public authority or agency having jurisdiction which requires all Work to be stopped; § A.14.1.2 The Design-Builder may terminate the Design-Build Contract if, through no act or fault of the Design- Builder or a Contractor, SubeentFaeter- Subcontractor, Supplier or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Design-Builder, repeated suspensions, delays or interruptions of the entire Work by the Owner, as described in Section A. 14.3, constitute in the aggregate more than done -hundred (100%) percent of the total number of days scheduled for completion, or 44A-sixt 60 days in any 365-day period, whichever is less. § A.14.1.3 If one prior of the reasons described in Sections A. 14.1.1 or A.14.1.2 exists, the Design-Builder may, upon seven days' written notice to the Owner, terminate the Design-Build Contract and recover from the Owner payment for Work executed and for proven loss with respect to materials, equipment, tools, and construction equipment and machinery, including reasonable overhead, profit and-damages.and damages which shall be limited to that portion of the Work already completed on the project The Design-Builder shall submit to the Owner for review a detailed pay request with sufficient documentation reflecting work performed, goods and/or services Additions and Deletions Report for AIA Document A141 TM - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 9 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 In 018/2006 under Orro.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: I (1162032265) provided and any and all loses or damages sustained The Owner will review the pay request to determine if such costs are reasonable If Owner accents and agrees topay, in whole or in part the costs provided therein, the Owner will make payment to the Design-Builder in accordance with the Design-Build Documents, subject to approval by the Commissioners Court. If the pay request is not resolved to the satisfaction of the Design-Builder then the Design-Builder may submit a claim pursuant to Article A.4. § A.14.1.4 If the Work is stopped for a period of 60-sixt 60 consecutive days through no act or fault of the Design- Builder or a ~'~tor- Contractor Subcontractor or Supplier or their agents or employees or any other persons performing portions of the Work under a direct or indirect contract with the Design-Builder because the Owner has persistently failed to fulfill the Owner's obligations under the Design-Build Documents with respect to matters important to the progress of the Work, the Design-Builder may, upon seven additional ' (7)additional days' prior written notice to the Owner, terminate the Design-Build Contract and recover from the Owner as provided in Section A.14.1.3. PAGE 34 .1 persistently or repeatedly refuses or fails to supply enough properly skilled workers or proper mate 4als;materials or supplies; .2 fails to make payment to Contractors or Suppliers for services, ffkqefials-materials, supplies or labor in accordance with the respective agreements between the Design-Builder and the Architect and Contractors; .3 persistently disregards laws, codes, ordinances or rules, regulations or orders of a public or governmental authority or a eg ncy having jurisdiction; or .4 otherwise is guilty of a substantial or material breach of a provision of the Design-Build Documents. § A.14.2.2 When any of the above reasons exist, the Owner may in the sole discretion and without prejudice to any other rights or remedies of the Owner and after giving the Design-Builder and the Design-Builder's surety, if any, seven ajdays' a'or written notice, terminate employment of the Design-Builder and may, in the sole discretion subject to any prior rights of the surety: .2 accept assignment of ^^ts : ontracts subcontracts leases or other acrreements necessary to complete the work includin tg hose pursuant to Section A.5.5.1; and .3 €mish-complete the Work by whatever reasonable means or method the Owner may deem expedient. Upon request of the Design-Builder, the Owner shall furnish to the Design-Builder a detailed accounting of the costs incurred by the Owner in €inishi igcompleting_the Work. § A.14.2.3 When the Owner terminates the Design-Build Contract for one 11 of the reasons stated above in Section A.14.2.1, the Design-Builder shall not be entitled to receive further payment until the Work is completed and fully performed. In the event that the Design-Build contract is terminated for cause and such cause is found not to exist the termination by the Owner will automatically convert to a termination by the Owner for convenience. § A.14.2.4 If the unpaid balance of the Contract Sum exceeds costs of €mishi igcompleting the Work and other damages incurred by the Owner- and Fiet aixpr-essly :ai ce , Owner, , such excess shall be paid to the Design-Builder. If such costs and damages exceed the unpaid balance, the Design-Builder shall pay the difference to the Owner upon request by the Owner. This obligation will survive termination of the Design-Build contract. § A.14.3.1 The Owner may, without cause, order the Design-Builder in writing to suspend, delay or interrupt the Work in whole or in part for such period of time as the Owner may adetermine or deem necessary or appropriate. § A.14.3.2 The Contract Sum and Contract Time shall be adjusted for increases in the cost and time caused by suspension, delay or interruption as described in Section A.14.3.1. Adj stm&PA-An adjustment of the Contract Sum Additions and Deletions Report for AIA Document A141 TM - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 10 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No. 10003585561 which expires on 6/2/2009, and is not for resale. User Notes: (1162032265) shall include e€1-reasonableprofit after review and approval of such by the Owner. No adjustment shall be made to the extent: PAGE 35 cease operations and performance of the Design-Build contract as directed by the Owner in the notice; except for Work directed to be performed prior to the effective date of termination stated in the notice, terminate all existing contracts and purchase orders and enter into no further contracts and purchase erdeFs-.orders unless specifically directed otherwise in the notice. § A.14.4.3 In the event of termination for the Owner's convenience prior to commencement of construction, the Design-Builder shall be entitled to receive payment for design services performed, costs incurred by reason of such termination and reasonable overhead and profit on design services not completed. In case of termination for the Owner's convenience after commencement of construction, the Design-Builder shall be entitled to receive payment the WeFk not exee*tea.from the Owner on the same basis as provided in Section A.14.1.3. A.14.5 TRANSITION SERVICES REQUIRED OF DESIGN-BUILD CONTRACTOR § A.14.5.1 Upon notice of termination, suspension, cancellation, or expiration of the Design-Build Contract, the Owner shall immediately have the right to audit any and all records of the Design-Build Contractor relating to the Design-Build Contract. Moreover, upon the termination, suspension, cancellation, or expiration of the Design-Build Contract, the Design-Build Contractor agrees to transition the Work and/or services provided under the Design- Build Contract in a cooperative manner and provide anything requested from the Owner at no additional cost, including, but not limited to, the following: (I) All Work and services documentation, including all records, books, and data reasonably related to the Design-Build Contract, maintained in accordance with general accounting procedures and identified in a complete, neat, and orderly manner; (ii) A good faith pledge to cooperate with the Owner upon transition of the Work and/or services to another Design-Build Contractor or a contractor or the Owner or separate contractors of the Owner; (iii) Records, books, and data, including electronic data, in a format compatible with the Owner's information technology capabilities, or in a format compatible with a succeeding Design-Build Contractor's or contractor's or separate contractor's information technology capabilities, as determined by the Owner, (iv) Final accounting of all income derived from the Design-Build Contract; (v) Downloading and removal of all the Owner's information from the Design-Build Contractor's equipment and software; and NO Removal of the Design-Build Contractor's services without degradation or other adverse affect on the Work. This Section A.14.5.1 shall survive termination, suspension, cancellation, or expiration of the Design- Build Contract. ARTICLE A.15 ASSURANCES OF THE DESIGN-BUILD CONTRACTOR 4 A.15.1 In providing the Work and/or services required by this Design-Build Contract, the Design-Build Contractor agrees to observe and comply with all requirements, licenses, legal certifications, or inspections required for the Work, services, facilities, equipment, materials, or supplies and all applicable federal, state, and local laws, statutes, codes, ordinances, rules, regulations, and orders. The Design-Build Contractor's failure to comply with this Section A.15.1 shall be treated as a default and/or breach of the Design-Build Contract. § AA 5.2 The Design-Build Contractor assures that it will not transfer or assign its interest in the Design-Build Contract without the prior written consent of the Owner and formal approval of the Commissioners Court. The Design-Build Contractor understands that in the event that all or substantially all of the Design-Build Contractor's assets are acquired by another entity, the Design-Build Contractor is still obligated to fulfill the terms and conditions of the Design-Build Contract. § A.15.3 The Design-Build Contractor, by acceptance of the terms of the Design-Build Contract, agrees and ensures that employees or agents providing Work and/or services under the Design-Build Contractare duly licensed and/or qualified to perform the required Work and/or services. The Design-Build Contractor further agrees and ensures that all licenses or permits necessary to perform the required Work and/or services are current and that the Owner Additions and Deletions Report for AIA Document A141 Tm -2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 11 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/20Q8.under Order No. 10003585561 which expires on 6/2/2009, and is not for resale. User Notes: 3 0 (1162032265) will be notified immediately if such licenses or permits become invalid during performance of the Design-Build Contract. $ A 15 4 The Design-Build Contractor assures that no person will on the grounds of race creed, color, handicap, disability, national origin sex, political affiliation or beliefs be excluded from be denied the benefit of, or be subjected to discrimination under any activity funded in whole or part under this Design-Build Contract. The Design-Build Contractor agrees to comply, if applicable with all federal and state statutes relating to nondiscrimination including but not limited to: Title VI of the Civil Rights Act of 1964 (P.L. 88-352), which prohibits discrimination on the basis of race color, or national origin; Title IX of the Education Amendments of 1972, as amended (20 U S C SS 1681-1683 and 1685-1686) which prohibits discrimination on the basis of sex; Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C.S 794) which prohibits discrimination on the basis of handicaps; the Americans with Disabilities Act of 1990 (P L 101-336) which prohibits discrimination on the basis of disabilities; the Age Discrimination Act of 1975, as amended (42 U.S.C. SS 6101-6107), which prohibits discrimination on the basis of age; the Drug Abuse Office and Treatment Act of 1972 (P.L. 92-255), as amended relating to nondiscrimination on the basis of drug abuse; the Comprehensive Alcohol Abuse and Alcoholism Prevention Treatment and Rehabilitation Act of 1970 (P.L. 91-616), as amended, relating to nondiscrimination on the basis of alcohol and drug abuse patient records; and the requirements of any other nondiscrimination statute(s) which may apply. $ A.1 55 The Design Build Contractor agrees to adhere to confidentiality requirements as applicable for the Work and/or services performed for the Owner under the Design-Build Documents and any other confidentiality provisions or laws whether federal or state relating to the Work and/or services being providing hereunder. 4A 15 6 The Design-Build Contractor assures that it will not use any information documents or data provided to the Design-Build Contractor by the Owner for any proprietary purposes and shall not copy, sell exchange, disclose, or otherwise provide to others or use any information documents or data reasonably related to this Design-Build Contract for its own proprietary interests. S A 15 7 The Design-Build Contractor shall comply with all federal state and local laws statutes, ordinances, rules, and regulations in effect as of the effective date of the Design-Build Contract and orders and decrees of any courts or administrative bodies or tribunals in any matter affecting the performance of the Design-Build Contract, including without limitation workers' compensation laws minimum and maximum salary and wage statutes and regulations licensing laws and regulations and non-discrimination laws and regulations. When required, the Design-Build Contractor shall furnish to the Owner satisfactory proof of compliance therewith. 6 A.1 58 The Design-Build Contractor shall have a drug and alcohol free work place policy. The Design-Build Contractor shall also require that all contracts between itself and Contractors performing Work and/or services under the Design-Build Contract also comply with said requirements. $ A 15 9 Pursuant to Article 2.45 of the Business Corporation Act Texas Civil Statutes, which prohibits the Owner from entering into a contract with a corporation that is delinquent in paving taxes under Chapter 171 of the Texas Tax Code the Design-Build Contractor, by executing this Design-Build Contract, hereby certifies that it is not delinquent in its Texas franchise tax payments or that it is exempt from or not subject to such a tax. A false statement concerning the Design-Build Contractor's franchise tax status shall constitute a default or breach of this Design-Build Contract and the Owner may terminate the Design-Build Contract for cause at the sole option of the Owner. §A.15.10 The Design-Build Contractor certifies that neither it nor any of its principals is presently debarred, suspended proposed for debarment declared ineligible or voluntarily excluded from participating in the Design- Build Contract by any federal or state department or agency. § A.15.11 The Design-Build Contractor shall pay all Contractors and suppliers in a timely manner. The Owner shall have no liability to any Contractors Subcontractors Sub-subcontractors or suppliers in the event the Design-Build Contractor does not pay or delays payment to any Contractors. At termination or expiration of the Design-Build Contract the Design-Build Contractor shall deliver to the Owner an affidavit of all bills paid. Final payment may, in the sole discretion of the Owner, be contingent upon receipt of such affidavits as resolution of all accounting for which the Owner is or may be liable under the Design-Build Contract. Additions and Deletions Report for AIA Document A141Tm - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 12 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/1812008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: (1162032265) V Ol, 6 A.15.12 Failure of the Design-Build Contractor to comply with any of these assurances or any other requirements specified within the Design-Build Document will put the Design-Build Contractor in default and/or breach of the Design-Build Contract and may result, at the sole discretion of the Owner, in the withholding of payments and the withholding of future awards, in addition to any other remedies permitted by law. 6 A.16 ACCEPTANCES AND SIGNATORY WARRANTY & A.16.1 The duly authorized representatives of the Design-Build Contractor and the Owner accept the terms of the Design-Build Contract in full. § A.16.2 The person or persons signing and executing the Design-Build Contract on behalf of the Design-Build Contractor, or representing themselves as signing and executing the Design-Build Contract on behalf of the Design- Build Contractor, do hereby warrant and guarantee that he, she, or they have been duly authorized by the Design- Build Contractor to execute the Design-Build Contract on behalf of the Design-Build Contractor and to validly and legally bind the Design-Build Contractor to all terms, conditions, and provisions of the Design-Build Documents. The Design-Build Contractor shall furnish to the Owner a corporate resolution authorizing signatory authority. Additions and Deletions Report for AIA Document A141 TM - 2004 Exhibit A. Copyright @ 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 13 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/20VIder order No.y2l;R556_1 which expires on 6/2/2009, and is not for resale. User Notes: • (1162032265) AIA Document A141"' - 2004 Exhibit B Determination of the Cost of the Work for the following PROJECT: (Name and location or address) Minimum Security Facility Sandy Point Road Bryan, Texas THE OWNER: (Name and address) Brazos County 300 East 26"' Street Bryan, Texas 77803 THE DESIGN-BUILDER: (Name and address) Greenway Constructors, Inc. - Patterson Architects P.O. Box 11184 College Station, Texas 77842 ADDITIONS AND DELETIONS: The author of this document has added information needed for its completion. The author may also have revised the text of the original AIA standard form. An Additions and Deletions Report that notes added information as well as revisions to the standard form text is available from the author and should be reviewed. A vertical line in the left margin of this document indicates where the author has added necessary information and where the author has added to or deleted from the original AIA text. This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. Consultation with an attorney is also encouraged with respect to professional licensing requirements in the jurisdiction where the Project is located. AIA Document A141 TM - 2004 Exhibit B. Copyright @ 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA' Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:49:33 on 08/18/2008 under Order No.1000358556_1 which expires on 612/2009, and is not for resale. User Notes: I (2147543675) .133 ARTICLE B.1 CONTROL ESTIMATE § B.1.1 Where the Contract Sum is the Cost of the Work, plus the Design-Builder's Fee without a Guaranteed Maximum Price pursuant to Section 4.3 of the Agreement, the Design-Builder shall prepare and submit to the Owner prior to the Design-Builder's first Application for Payment, in writing, a Control Estimate. The Control Estimate shall include the estimated Cost of the Work plus the Design-Builder's Fee. The Control Estimate shall be used to monitor actual costs. § B.1.2 The Control Estimate shall include: .1 the documents enumerated in Article 8 of the Agreement, including all Addenda thereto and the Terms and Conditions of the Contract; .2 a statement of the estimated Cost of the Work showing separately the compensation for design services, construction costs organized by trade categories or systems and the Design-Builder's Fee; and .3 contingencies for further development of design and construction. § B.1.3 The Design-Builder shall meet with the Owner to review the Control Estimate. In the event that the Owner discovers any inconsistencies or inaccuracies in the information presented, it shall promptly notify the Design- Builder, who shall make appropriate adjustments to the Control Estimate. When the Control Estimate is acceptable to the Owner, the Owner shall acknowledge its acceptance in writing. The Owner's acceptance of the Control Estimate does not imply that the Control Estimate constitutes a Guaranteed Maximum Price. § B.1.4 The Design-Builder shall develop and implement a detailed system of cost control that will provide the Owner with timely information as to the anticipated total Cost of the Work. The cost control system shall compare the Control Estimate with the actual cost for activities in progress and estimates for uncompleted tasks and proposed changes. This information shall be reported to the Owner, in writing, no later than the Design-Builder's first Application for Payment and shall be revised monthly or at other intervals as mutually agreed. ARTICLE B.2 COSTS TO BE REIMBURSED § B.2.1 COST OF THE WORK The term Cost of the Work shall mean costs necessarily incurred by the Design-Builder in the proper performance of the Work. Such costs shall be at rates not higher than the standard paid at the place of the Project except with prior consent of the Owner. The Cost of the Work shall include only the items set forth in this Article B.2. § B.2.2 LABOR COSTS § B.2.2.1 Wages of construction workers directly employed by the Design-Builder to perform the construction of the Work at the site or, with the Owner's approval, at off-site locations. § B.2.2.2 Wages or salaries of the Design-Builder's supervisory and administrative personnel when stationed at the site with the Owner's approval. § 8.2.2.3 Wages and salaries of the Design-Builder's supervisory or administrative personnel engaged at factories, workshops or on the road, in expediting the production or transportation of materials or equipment required for the Work, but only for that portion of their time required for the Work. § B.2.2.4 Costs paid or incurred by the Design-Builder for taxes, insurance, contributions, assessments and benefits required by law or collective bargaining agreements and, for personnel not covered by such agreements, customary benefits such as sick leave, medical and health benefits, holidays, vacations and pensions, provided such costs are based on wages and salaries included in the Cost of the Work under Sections B.2.2.1 through B.2.2.3. § B.2.3 CONTRACT COSTS § 8.2.3.1 Payments made by the Design-Builder to Contractors in accordance with the requirements of their contracts. § B.2.4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED CONSTRUCTION § B.2.4.1 Costs, including transportation and storage, of materials and equipment incorporated or to be incorporated in the completed construction. AIA Document A141 TM - 2004 Exhibit B. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 2 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:49:33 on 08/18/2008 under Order No.1000358556 1 w ich, expirps on 6/2/2009 and is not for resale. (2147543675) User Notes: t: r a 3 q § 13.2.4.2 Costs of materials described in the preceding Section B.2.4.1 in excess of those actually installed to allow for reasonable waste and spoilage. Unused excess materials, if any, shall become the Owner's property at the completion of the Work or, at the Owner's option, shall be sold by the Design-Builder. Any amounts realized from such sales shall be credited to the Owner as a deduction from the Cost of the Work. § 13.2.5 COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND RELATED ITEMS § 13.2.5.1 Costs, including transportation and storage, installation, maintenance, dismantling and removal of materials, supplies, temporary facilities, machinery, equipment, and hand tools not customarily owned by construction workers, that are provided by the Design-Builder at the site and fully consumed in the performance of the Work; and cost (less salvage value) of such items if not fully consumed, whether sold to others or retained by the Design-Builder. The basis for the cost of items previously used by the Design-Builder shall mean the fair market value. § 13.2.5.2 Rental charges for temporary facilities, machinery, equipment, and hand tools not customarily owned by construction workers that are provided by the Design-Builder at the site, whether rented from the Design-Builder or others, and costs of transportation, installation, minor repairs and replacements, dismantling and removal thereof. Rates and quantities of equipment rented shall be subject to the Owner's prior approval. § B.2.5.3 Costs of removal of debris from the site. § 6.2.5.4 Cost of document reproductions, facsimile transmissions and long distance telephone calls, postage and parcel delivery charges, telephone service at the site and reasonable petty cash expenses of the site office. § 13.2.5.5 That portion of the reasonable expenses of the Design-Builder's personnel incurred while traveling in discharge of duties connected with the Work. § 13.2.5.6 Costs of materials and equipment suitably stored off the site at a mutually acceptable location, if approved in advance by the Owner. § 13.2.6 DESIGN AND OTHER CONSULTING SERVICES § 13.2.6.1 Compensation, including fees and reimbursable expenses, paid by the Design-Builder for design and other consulting services required by the Design-Build Documents. § 13.2.7 MISCELLANEOUS COSTS § 13.2.7.1 That portion of insurance and bond premiums that can be directly attributed to this Design-Build Contract. § 13.2.7.2 Sales, use or similar taxes imposed by a governmental authority that are related to the Work. § B.2.7.3 Fees and assessments for the building permit and for other permits, licenses and inspections for which the Design-Builder is required by the Design-Build Documents to pay. § 13.2.7.4 Fees of laboratories for tests required by the Design-Build Documents, except those related to defective or non-conforming Work for which reimbursement is excluded by Section A.13.5.3 of Exhibit A, Terms and Conditions, or other provisions of the Design-Build Documents, and which do not fall within the scope of Section A.13.5.3. § 13.2.7.5 Royalties and license fees paid for the use of a particular design, process or product required by the Design- Build Documents; the cost of defending suits or claims for infringement of patent rights arising from such requirement of the Design-Build Documents; and payments made in accordance with legal judgments against the Design-Builder resulting from such suits or claims and payments of settlements made with the Owner's consent. However, such costs of legal defenses, judgments and settlements shall not be included in the calculation of the Design-Builder's Fee or subject to the Guaranteed Maximum Price. If such royalties, fees and costs are excluded by the last sentence of Section A.3.16.1 of Exhibit A, Terms and Conditions, or other provisions of the Design-Build Documents, then they shall not be included in the Cost of the Work. § B.2.7.6 Data processing costs related to the Work. Init. AIA Document A141Tm - 2004 Exhibit B. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 3 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:49:33 on 08/18/2008 under Order No. 1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: 2147543675) § B.2.7.7 Deposits lost for causes other than the Design-Builder's negligence or failure to fulfill a specific responsibility to the Owner as set forth in the Design-Build Documents. § B.2.7.8 Legal, mediation and arbitration costs, including attorneys' fees, other than those arising from disputes between the Owner and Design-Builder, reasonably incurred by the Design-Builder in the performance of the Work and with the Owner's prior written approval, which approval shall not be unreasonably withheld. § B.2.7.9 Expenses incurred in accordance with the Design-Builder's standard personnel policy for relocation and temporary living allowances of personnel required for the Work, if approved by the Owner. § B.2.8 OTHER COSTS AND EMERGENCIES § B.2.8.1 Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the Owner. § B.2.8.2 Costs due to emergencies incurred in taking action to prevent threatened damage, injury or loss in case of an emergency affecting the safety of persons and property, as provided in Section A.10.6 of Exhibit A, Terms and Conditions. § B.2.8.3 Cost of repairing or correcting damaged or non-conforming Work executed by the Design-Builder, Contractors, Subcontractors or suppliers, provided that such damaged or non-conforming Work was not caused by negligence or failure to fulfill a specific responsibility of the Design-Builder and only to the extent that the cost of repair or correction is not recoverable by the Design-Builder from insurance, sureties, Contractors, Subcontractors or suppliers. ARTICLE B.3 COSTS NOT TO BE REIMBURSED § B.3.1 The Cost of the Work shall not include: § B.3.1.1 Salaries and other compensation of the Design-Builder's personnel stationed at the Design-Builder's principal office or offices other than the site office, except as specifically provided in Sections B.2.2.2 and B.2.2.3. § B.3.1.2 Expenses of the Design-Builder's principal office and offices other than the site office. § B.3.1.3 Overhead and general expenses, except as may be expressly included in Article B.2 of this Exhibit. § 8.3.1.4 The Design-Builder's capital expenses, including interest on the Design-Builder's capital employed for the Work. § 8.3.1.5 Rental costs of machinery and equipment, except as specifically provided in Section B.2.5.2. § B.3.1.6 Except as provided in Section B.2.8.3 of this Agreement, costs due to the negligence or failure of the Design-Builder to fulfill a specific responsibility of the Design-Builder, Contractors, Subcontractors and suppliers or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable. § B.3.1.7 Any cost not specifically and expressly described in Article B.2, Costs to be Reimbursed. § 8.3.1.8 Costs, other than costs included in Change Orders approved by the Owner, that would cause the Guaranteed Maximum Price, if any, to be exceeded. ARTICLE B.4 DISCOUNTS, REBATES AND REFUNDS § B.4.1 Cash discounts obtained on payments made by the Design-Builder shall accrue to the Owner if (1) before making the payment, the Design-Builder included them in an Application for Payment and received payment from the Owner, or (2) the Owner has deposited funds with the Design-Builder with which to make payments; otherwise, cash discounts shall accrue to the Design-Builder. Trade discounts, rebates, refunds and amounts received from sales of surplus materials and equipment shall accrue to the Owner, and the Design-Builder shall make provisions so that they can be secured. Init. AIA Document A141 TM - 2004 Exhibit B. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 4 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:49:33 on 08/18/2008 under Order No. 10003585561 which expires on 6/2/2009, and is not for resale. User Notes: 1 P (2147543675) § B.4.2 Amounts that accrue to the Owner in accordance with the provisions of Section B.4.1 shall be credited to the Owner as a deduction from the Cost of Work. ARTICLE B.5 CONTRACTS AND OTHER AGREEMENTS OTHER THAN FOR DESIGN PROFESSIONALS HIRED BY THE DESIGN-BUILDER § B.5.1 Those portions of the Work that the Design-Builder does not customarily perform with the Design-Builder's own personnel shall be performed by others under contracts or by other appropriate agreements with the Design- Builder. The Owner may designate specific persons or entities from whom the Design-Builder shall obtain bids. The Design-Builder shall obtain bids from Contractors and from suppliers of materials or equipment fabricated especially for the Work and shall deliver such bids to the Owner. The Owner shall then determine which bids will be accepted. The Design-Builder shall not be required to contract with anyone to whom the Design-Builder has reasonable objection. § B.5.2 Contracts or other agreements shall conform to the applicable payment provisions of this Design-Build Contract, and shall not be awarded on the basis of cost plus a fee without the Owner's prior consent. ARTICLE B.6 ACCOUNTING RECORDS § B.6.1 The Design-Builder or any affiliated person or entity which performs a portion of the Work shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under this Agreement, and the accounting and control systems shall be satisfactory to the Owner. The Owner and the Owner's accountants shall be afforded access to, and shall be permitted to audit and copy, the Design-Builder's records, books, correspondence, instructions, receipts, contracts, purchase orders, vouchers, memoranda and other data relating to this Agreement, and the Design-Builder shall preserve these for a period of three years after final payment, or for such longer period as may be required by law. § B.6.2 When the Design-Builder believes that all the Work required by the Agreement has been fully performed, the Design-Builder shall deliver to the Owner's accountant a final accounting of the Cost of the Work. § B.6.3 The Owner's accountants will review and report in writing on the Design-Builder's final accounting within 21 days after delivery of the final accounting. Based upon such Cost of the Work as the Owner's accountants report to be substantiated by the Design-Builder's final accounting, and provided the other conditions of Section A.9.10 of the Agreement have been met, the Owner will, within seven days after receipt of the written report of the Owner's accountants, notify the Design-Builder in writing of the Owner's intention to make final payment or to withhold final payment. § B.6.4 If the Owner's accountants report the Cost of the Work as substantiated by the Design-Builder's final accounting to be less than claimed by the Design-Builder, the Design-Builder shall be entitled to initiate resolution of the dispute pursuant to Article 6 of the Agreement and Article AA of Exhibit A, Terms and Conditions, for the disputed amount. If the Design-Builder fails to so initiate resolution of the dispute within the period of time required by Section A.4.1.2 of Exhibit A, Terms and Conditions, the substantiated amount reported by the Owner's accountants shall become binding on the Design-Builder. Pending a final resolution pursuant to Article 6 of the Agreement and Article A.4 of Exhibit A, Terms and Conditions, the Owner shall pay the Design-Builder the amount, if any, determined by the Owner's accountant to be due the Design-Builder. § B.6.5 If, subsequent to final payment and at the Owner's request, the Design-Builder incurs costs in connection with the correction of defective or non-conforming work as described in Article B.2, Costs to be Reimbursed, and not excluded by Article B.3, Costs Not to be Reimbursed, the Owner shall reimburse the Design-Builder such costs and the Design-Builder's Fee applicable thereto on the same basis as if such costs had been incurred prior to final payment, but not in excess of the Guaranteed Maximum Price, if any. If the Design-Builder has participated in savings as provided in Section 4.4.3.1 of the Agreement, the amount of such savings shall be recalculated and appropriate credit given to the Owner in determining the net amount to be paid by the Owner to the Design-Builder. Init. AIA Document A141 M - 2004 Exhibit B. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 5J may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:49:33 on 08/18/2008 under Order No. 10003585561 which expires on 6/2/2009, and is not for resale. User Notes: (2147543675) a3-7 Additions and Deletions Report for AIA® Document A 141 TM - 2004 Exhibit B This Additions and Deletions Report, as defined on page 1 of the associated document, reproduces below all text the author has added to the standard form AIA document in order to complete it, as well as any text the author may have added to or deleted from the original AIA text. Added text is shown underlined. Deleted text is indicated with a horizontal line through the original AIA text. Note: This Additions and Deletions Report is provided for information purposes only and is not incorporated into or constitute any part of the associated AIA document. This Additions and Deletions Report and its associated document were generated simultaneously by AIA software at 13:49:33 on 08/18/2008. PAGE 1 Minimum Security Facility Sandy Point Road Bryan, Texas Brazos County 300 East 26 h Street Bryan, Texas 77803 Greenway Constructors, Inc. - Patterson Architects P.O. Box 11184 College Station, Texas 77842 Additions and Deletions Report for AIA Document A141 Tm - 2004 Exhibit B. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 1 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:49:33 on 08/18/2008 udder Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: 1 ' :~k J V (2147543675) ---~r= 41rr- 2004 Exhibit C Document Aln Insurance and Bonds for the following PROJECT: (Name and location or address) Minimum Security Facility Sandy Point Road Bryan, Texas THE OWNER: (Name and address) Brazos County 300 East 26`h Street Bryan, Texas 77803 THE DESIGN-BUILDER: (Name and address) Greenway Constructors, Inc. - Patterson Architects P.O. Box 11184 College Station, Texas 77842 ADDITIONS AND DELETIONS: The author of this document has added information needed for its completion. The author may also have revised the text of the original AIA standard form. An Additions and Deletions Report that notes added information as well as revisions to the standard form text is available from the author and should be reviewed. A vertical line in the left margin of this document indicates where the author has added necessary information and where the author has added to or deleted from the original AIA text. This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. Consultation with an attorney is also encouraged with respect to professional licensing requirements in the jurisdiction where the Project is located. AIA Document A141 "m -2004 Exhibit C. Copyright @ 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA ' Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, Init. may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:50:43 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: 13 (1748286481) ARTICLE C.1 The Owner and Design-Builder shall provide policies of liability insurance as required by the Design-Build Documents, or as follows: (Specify changes, if any, to the requirements of the Design-Build Documents, and for each type of insurance identify applicable limits and deductible amounts.) General Liability in the amount of $1,000,000 with Brazos County named as additional insured. Worker's Compensation in the amount of $1,000,000 with waiver of subrogation in favor of Brazos County. ARTICLE C.2 The Design-Builder shall provide surety bonds as follows: (Specify type and penal sum of bonds.) Type Penal Sum 0.00) Payment and Performance Bond 100% § C.2.1 Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering payment of obligations arising under the Agreement, the Design-Builder shall promptly furnish a copy of the bonds or shall permit a copy to be made. AIA Document A141 TM - 2004 Exhibit C. Copyright @ 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 2 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:50:43 on 08/18/2008 under Order No.1 000358556 1 which expires 602009, and is not for resale. User Notes: I _ + (1748286481) Additions and Deletions Report for AIA® Document A141,m - 2004 Exhibit C This Additions and Deletions Report, as defined on page 1 of the associated document, reproduces below all text the author has added to the standard form AIA document in order to complete it, as well as any text the author may have added to or deleted from the original AIA text. Added text is shown underlined. Deleted text is indicated with a horizontal line through the original AIA text. Note: This Additions and Deletions Report is provided for information purposes only and is not incorporated into or constitute any part of the associated AIA document. This Additions and Deletions Report and its associated document were generated simultaneously by AIA software at 13:50:43 on 08/18/2008. PAGE 1 Minimum Security Facility Sandy Point Road Bryan, Texas Brazos County 300 East 26th Street Bryan, Texas 77803 Greenway Constructors, Inc. - Patterson Architects P.O. Box 11184 College Station, Texas 77842 PAGE 2 General Liability in the amount of $1,000,000 with Brazos County named as additional insured. Worker's Compensation in the amount of $1,000,000 with waiver of subrogation in favor of Brazos County. Payment and Performance Bond 100% Additions and Deletions Report for AIA Document A141 TM - 2004 Exhibit C. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 1 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:50:43 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: F I I a 41 (1748286481) IPA-1A Document ,4141- - 2004 Standard Form of Agreement Between Owner and Design-Builder AGREEMENT made as of the Twenty Eighth day of July in the year of Two Thousand Eight (Irz words, irzdic¢re= day, nzonih and year) ADDITIONS AND DELETIONS= BETWEEN the Owner Tha author of this document has (N¢me=, ¢ddress and other info rnz¢fiorz) added information naadad for its completion. Tha a/u\thor may also have revisal the text of the original Brazos County 300 East 26n Street AIA standard f- An Additions and Deletions Report notes added Bryan, Texas 77803 that information as well as revisions to the standard form text is availably from the author and should ba and the Design-Builder= reviewed- A vertical line m the left (Name, address and other info rm¢tiorz) margin of this document indicates where the author has added I C'srecnway Constructors, Inc-- Patterson Architects necessary information and P_O where . Box 11184 the author has added to or deleted College Station, Texas 77842 from the original AIA text. Telephone Number: 979-220-5596 Thisdocument has important legal Fax Number 979-690-1676 consequences- Consultation with an attorney is encouraged with respect For the following Project: to its completion or modification. (N¢me, Location ¢rzd defiled description) Consultation with an attorney is also Arena Hall. Voting Services encouraged with respect to Tabor Road professional licensing raquiramants Bryan, Texas in the jurisdiction whore the Project Intartor Upgrades to Arena Hall Voting Services is located- The Owner and Design-Builder agree as follows. AIA Oo umant A141 ^r - 2004. Copyrig M1t ® 2004 by -a American Instiluta of Architects. A11 rights reserve_ WARNING: TM1IS AIA® 0ocumani is Illlt by V.S. Copyrig M1t Law and Iniernaiional Treaties. Umauihori2etl reproduction or disiribuT ion of tM1is AIA® ~ocumenf, or an ion of it. ma proteci n 7 severe dvil and cri minal --elites, and will be Y Potl y result in p prosecuted to iM1e maximum extent possible under the law. This tlocumant was protlucetl by AIA software / at 13:27:11 on 08/1812008 under Order No.1000358556-1 which expires on 6/2/2000, and is not for resale. User Notes I 1 ' -~1 t\ 'l l O~ T <Y (702523385) TABLE OF ARTICLES THE DESIGN-BUILD DOCUMENTS WORK OF THIS AGREEMENT DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION 4 CONTRACT SUM PAYMENTS DISPUTE RESOLUTION MISCELLANEOUS PROVISIONS ENUMERATION OF THE DESIGN-BUILD DOCUMENTS TABLE OF EXHIBITS A TERMS AND CONDITIONS B DETERMINATION OF THE COST OF THE WORK C INSURANCE AND BONDS ARTICLE 1 THE DESIGN-BUILD DOCUMENTS § 1.1 The Design-Build Documents form the Design-Build Contract. The Design-Build Documents consist of this Agreement between Owner and Design-Builder (hereinafter, the "Agreement") and its attached Exhibits; Supplementary and other Conditions; Addenda issued prior to execution of the Agreement; the Project Criteria, including changes to the Project Criteria proposed by the Design-Builder and accepted by the Owner, if any; the Design-Builder's Proposal and written modifications to the Proposal accepted by the Owner, if any; other documents listed in this Agreement; and Modifications issued after execution of this Agreement. The Design-Build Documents shall not be construed to create a contractual relationship of any kind (1) between the Architect and Owner, (2) between the Owner and a Contractor or Subcontractor, or (3) between any persons or entities other than the Owner and Design-Builder, including but not limited to any consultant retained by the Owner to prepare or review the Project Criteria. An enumeration of the Design-Build Documents, other than Modifications, appears in Article 8. § 1.2 The Design-Build Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. § 1.3 The Design-Build Contract may be amended or modified only by a Modification. A Modification is (1) a written amendment to the Design-Build Contract signed by both parties, (2) a Change Order, (3) a Construction Change Directive or (4) a written order for a minor change in the Work issued by the Owner. ARTICLE 2 THE WORK OF THE DESIGN-BUILD CONTRACT § 2.1 The Design-Builder shall fully execute the Work described in the Design-Build Documents, except to the extent specifically indicated in the Design-Build Documents to be the responsibility of others. ARTICLE 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION § 3.1 The date of commencement of the Work shall be the date of this Agreement unless a different date is stated below or provision is made for the date to be fixed in a notice issued by the Owner. (Insert the date of commencement if it differs from the date of this Agreement or, if applicable, state that the date will be fixed in a notice to proceed.) Init. AIA Document A141 TM - 2004. Copyright ® 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in 2 severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software / at 13:27:11 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: I I (702523385) . a The commencement date will be fixed in a notice to proceed. If, prior to the commencement of Work, the Owner requires time to file mortgages, documents related to mechanic's liens and other security interests, the Owner's time requirement shall be as follows: (Insert Owner's time requirements.) Not applicable. § 3.2 The Contract Time shall be measured from the date of commencement, subject to adjustments of this Contract Time as provided in the Design-Build Documents. (Insert provisions, if any, for liquidated damages relating to failure to complete on time.) Not applicable. § 3.3 The Design-Builder shall achieve Substantial Completion of the Work not later than days from the date of commencement, or as follows: (Insert number of calendar days. Alternatively, a calendar date may be used when coordinated with the date of commencement. Unless stated elsewhere in the Design-Build Documents, insert any requirements for earlier Substantial Completion of certain portions of the Work.) The Contractor shall achieve Substantial Completion of the interior renovation work not later than October 31, 2008 and the total project within one hundred twenty (120) days after issuance of the site development permit. Portion of Work Interior renovation work Substantial Completion Date October 31, 2008 ARTICLE 4 CONTRACT SUM § 4.1 The Owner shall pay the Design-Builder the Contract Sum in current funds for the Design-Builder's performance of the Design-Build Contract. The Contract Sum shall be one of the following: (Check the appropriate box.) [ X ] Stipulated Sum in accordance with Section 4.2 below; [ ] Cost of the Work Plus Design-Builder's Fee in accordance with Section 4.3 below; [ ] Cost of the Work Plus Design-Builder's Fee with a Guaranteed Maximum Price in accordance with Section 4.4 below. (Based on the selection above, complete either Section 4.2, 4.3 or 4.4 below.) § 4.2 STIPULATED SUM § 4.2.1 The Stipulated Sum shall be Two Hundred Ninety Five Thousand Two Hundred Ninety Eight Dollars and Zero Cents ( $295,298.00 subject to additions and deductions as provided in the Design-Build Documents. § 4.2.2 The Stipulated Sum is based upon the following alternates, if any, which are described in the Design-Build Documents and are hereby accepted by the Owner: None at this time. § 4.2.3 Unit prices, if any, are as follows: Description None at this time Units Price 0.00) § 4.2.4 Allowances, if any, are as follows: (Identify and state the amounts of any allowances, and state whether they include labor, materials, or both) Init. AIA Document A141 TM -2004. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in 3 severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software / at 13:27:11 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: I I 4t I (702523385) Allowance Design Fees Amount 0.00) Included Items $50,000.00 All A/E costs § 4.2.5 Assumptions or qualifications, if any, on which the Stipulated Sum is based, are as follows: No Assumptions or qualifications are made at this time. § 4.3 COST OF THE WORK PLUS DESIGN-BUILDER'S FEE § 4.3.1 The Cost of the Work is as defined in Exhibit B. § 4.3.2 The Design-Builder's Fee is: (State a lump sum, percentage of Cost of the Work or other provision for determining the Design-Builder's Fee and the method of adjustment to the Fee for changes in the Work.) § 4.4 COST OF THE WORK PLUS DESIGN-BUILDER'S FEE WITH A GUARANTEED MAXIMUM PRICE § 4.4.1 The Cost of the Work is as defined in Exhibit B, plus the Design-Builder's Fee. § 4.4.2 The Design-Builder's Fee is: (State a lump sum, percentage of Cost of the Work or other provision for determining the Design-Builder's Fee and the method of adjustment to the Fee for changes in the Work.) Included in the GMP below. § 4.4.3 GUARANTEED MAXIMUM PRICE § 4.4.3.1 The sum of the Cost of the Work and the Design-Builder's Fee is guaranteed by the Design-Builder not to exceed ( $ subject to additions and deductions by changes in the Work as provided in the Design-Build Documents. Such maximum sum is referred to in the Design-Build Documents as the Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Design-Builder without reimbursement by the Owner. (Insert specific provisions if the Design-Builder is to participate in any savings.) § 4.4.3.2 The Guaranteed Maximum Price is based on the following alternates, if any, which are described in the Design-Build Documents and are hereby accepted by the Owner: § 4.4.3.3 Unit Prices, if any, are as follows: Description Units Price 0.00) § 4.4.3.4 Allowances, if any, are as follows: (Identify and state the amounts of any allowances, and state whether they include labor, materials, or both.) Allowance Amount 0.00) Included Items § 4.4.3.5 Assumptions, if any, on which the Guaranteed Maximum Price is based, are as follows: (Identify the assumptions on which the Guaranteed Maximum Price is based.) AIA Document A141 TM - 2004. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected Init. by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software 4 / at 13:27:11 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: 1 I I ""1 4C3 (702523385) § 4.5 CHANGES IN THE WORK § 4.5.1 Adjustments of the Contract Sum on account of changes in the Work may be determined by any of the methods listed in Article A.7 of Exhibit A, Terms and Conditions. § 4.5.2 Where the Contract Sum is the Cost of the Work, with or without a Guaranteed Maximum Price, and no specific provision is made in Sections 4.3.2 or 4.4.2 for adjustment of the Design-Builder's Fee in the case of Changes in the Work, or if the extent of such changes is such, in the aggregate, that application of the adjustment will cause substantial inequity to the Owner or Design-Builder, the Design-Builder's Fee shall be equitably adjusted on the basis of the Fee established for the original Work, and the Contract Sum shall be adjusted accordingly. ARTICLE 5 PAYMENTS § 5.1 PROGRESS PAYMENTS § 5.1.1 Based upon Applications for Payment submitted to the Owner by the Design-Builder, the Owner shall make progress payments on account of the Contract Sum to the Design-Builder as provided below and elsewhere in the Design-Build Documents. § 5.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month, or as follows: § 5.1.3 Provided that an Application for Payment is received not later than the last day of month, the Owner shall make payment to the Design-Builder not later than the Tenth day of the following month. If an Application for Payment is received by the Owner after the application date fixed above, payment shall be made by the Owner not later than Five ( 5 ) days after the Owner receives the Application for Payment. § 5.1.4 With each Application for Payment where the Contract Sum is based upon the Cost of the Work, or the Cost of the Work with a Guaranteed Maximum Price, the Design-Builder shall submit payrolls, petty cash accounts, receipted invoices or invoices with check vouchers attached, and any other evidence required by the Owner to demonstrate that cash disbursements already made by the Design-Builder on account of the Cost of the Work equal or exceed (1) progress payments already received by the Design-Builder, less (2) that portion of those payments attributable to the Design-Builder's Fee; plus (3) payrolls for the period covered by the present Application for Payment. § 5.1.5 With each Application for Payment where the Contract Sum is based upon a Stipulated Sum or Cost of the Work with a Guaranteed Maximum Price, the Design-Builder shall submit the most recent schedule of values in accordance with the Design-Build Documents. The schedule of values shall allocate the entire Contract Sum among the various portions of the Work. Compensation for design services shall be shown separately. Where the Contract Sum is based on the Cost of the Work with a Guaranteed Maximum Price, the Design-Builder's Fee shall be shown separately. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Owner may require. This schedule of values, unless objected to by the Owner, shall be used as a basis for reviewing the Design-Builder's Applications for Payment. , § 5.1.6 In taking action on the Design-Builder's Applications for Payment, the Owner shall be entitled to rely on the accuracy and completeness of the information furnished by the Design-Builder and shall not be deemed to have made a detailed examination, audit or arithmetic verification of the documentation submitted in accordance with Sections 5.1.4 or 5.1.5, or other supporting data; to have made exhaustive or continuous on-site inspections; or to have made examinations to ascertain how or for what purposes the Design-Builder has used amounts previously paid on account of the Agreement. Such examinations, audits and verifications, if required by the Owner, will be performed by the Owner's accountants acting in the sole interest of the Owner. § 5.1.7 Except with the Owner's prior approval, the Design-Builder shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. AIA Document A141 Tm - 2004. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected Init. by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in 5 severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software / at 13:27:11 on 08/18/2008 under Order No.1000358556 1 which expires on 6/212009, and is not for resale. User Notes: A (702523385) § 5.2 PROGRESS PAYMENTS - STIPULATED SUM § 5.2.1 Applications for Payment where the Contract Sum is based upon a Stipulated Sum shall indicate the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. § 5.2.2 Subject to other provisions of the Design-Build Documents, the amount of each progress payment shall be computed as follows: .1 Take that portion of the Contract Sum properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Contract Sum allocated to that portion of the Work in the schedule of values, less retainage of five (5% ) on the Work, other than services provided by design professionals and other consultants retained directly by the Design-Builder. Pending final determination of cost to the Owner of Changes in the Work, amounts not in dispute shall be included as provided in Section A.7.3.8 of Exhibit A, Terms and Conditions; .2 Add that portion of the Contract Sum properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the completed construction (or, if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing), less retainage of five ( 5% .3 Subtract the aggregate of previous payments made by the Owner; and .4 Subtract amounts, if any, for which the Owner has withheld payment from or nullified an Application for Payment as provided in Section A.9.5 of Exhibit A, Terms and Conditions. § 5.2.3 The progress payment amount determined in accordance with Section 5.2.2 shall be further modified under the following circumstances: .1 add, upon Substantial Completion of the Work, a sum sufficient to increase the total payments to the full amount of the Contract Sum, less such amounts as the Owner shall determine for incomplete Work, retainage applicable to such work and unsettled claims; and (Section A.9.8.6 of Exhibit A, Terms and Conditions requires release of applicable retainage upon Substantial Completion of Work with consent of surety, if any.) .2 add, if final completion of the Work is thereafter materially delayed through no fault of the Design- Builder, any additional amounts payable in accordance with Section A.9.10.3 of Exhibit A, Terms and Conditions. § 5.2.4 Reduction or limitation of retainage, if any, under Section 5.2.2 shall be as follows: (If it is intended, prior to Substantial Completion of the entire Work, to reduce or limit the retainage resulting from the percentages inserted in Sections 5.2.2.1 and 5.2.2.2 above, and this is not explained elsewhere in the Design- Build Documents, insert here provisions for such reduction or limitation.) § 5.3 PROGRESS PAYMENTS - COST OF THE WORK PLUS A FEE § 5.3.1 Where the Contract Sum is based upon the Cost of the Work plus a fee without a Guaranteed Maximum Price, Applications for Payment shall show the Cost of the Work actually incurred by the Design-Builder through the end of the period covered by the Application for Payment and for which Design-Builder has made or intends to make actual payment prior to the next Application for Payment. § 5.3.2 Subject to other provisions of the Design-Build Documents, the amount of each progress payment shall be computed as follows: .1 Take the Cost of the Work as described in Exhibit B; .2 Add the Design-Builder's Fee, less retainage of ( % The Design-Builder's Fee shall be computed upon the Cost of the Work described in the preceding Section 5.3.2.1 at the rate stated in Section 4.3.2; or if the Design-Builder's Fee is stated as a fixed sum in that section, an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work in the preceding section bears to a reasonable estimate of the probable Cost of the Work upon its completion; .3 Subtract the aggregate of previous payments made by the Owner; AIA Document A141 TM - 2004. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected Init. by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in 6 severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software / at 13:27:11 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: I L ~ a L~ -1 (702523385) .4 Subtract the shortfall, if any, indicated by the Design-Builder in the documentation required by Section 5.1.4 or resulting from errors subsequently discovered by the Owner's accountants in such documentation; and .5 Subtract amounts, if any, for which the Owner has withheld or withdrawn a Certificate for Payment as provided in the Section A.9.5 of Exhibit A, Terms and Conditions. § 5.3.3 Retainage in addition to the retainage stated at Section 5.3.2.2, if any, shall be as follows: § 5.3.4 Except with the Owner's prior approval, payments for the Work, other than for services provided by design professionals and other consultants retained directly by the Design-Builder, shall be subject to retainage of not less than ( % The Owner and Design-Builder shall agree on a mutually acceptable procedure for review and approval of payments and retention for Contractors. § 5.4 PROGRESS PAYMENTS - COST OF THE WORK PLUS A FEE WITH A GUARANTEED MAXIMUM PRICE § 5.4.1 Applications for Payment where the Contract Sum is based upon the Cost of the Work Plus a Fee with a Guaranteed Maximum Price shall show the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. The percentage of completion shall be the lesser of (1) the percentage of that portion of the Work which has actually been completed; or (2) the percentage obtained by dividing (a) the expense that has actually been incurred by the Design-Builder on account of that portion of the Work for which the Design-Builder has made or intends to make actual payment prior to the next Application for Payment by (b) the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. § 5.4.2 Subject to other provisions of the Design-Build Documents, the amount of each progress payment shall be computed as follows: .1 Take that portion of the Guaranteed Maximum Price properly allocable to completed Work as determined by multiplying the percentage of completion of each portion of the Work by the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. Pending final- determination of cost to the Owner of changes in the Work, amounts not in dispute shall be included as provided in Section A.7.3.8 of Exhibit A, Terms and Conditions; .2 Add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work, or if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing; .3 Add the Design-Builder's Fee, less retainage of ( The Design-Builder's Fee shall be computed upon the Cost of the Work described in the two preceding sections at the rate stated in Section 4.4.2 or, if the Design-Builder's Fee is stated as a fixed sum in that section, shall be an amount that bears the same ratio to that fixed-sum fee as the Cost of the Work in the two preceding sections bears to a reasonable estimate of the probable Cost of the Work upon its completion; .4 Subtract the aggregate of previous payments made by the Owner; .5 Subtract the shortfall, if any, indicated by the Design-Builder in the documentation required by Section 5.1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by the Owner's accountants in such documentation; and .6 Subtract amounts, if any, for which the Owner has withheld or nullified a Certificate for Payment as provided in Section A.9.5 of Exhibit A, Terms and Conditions. § 5.4.3 Except with the Owner's prior approval, payments for the Work, other than for services provided by design professionals and other consultants retained directly by the Design-Builder, shall be subject to retainage of not less than ( The Owner and Design-Builder shall agree on a mutually acceptable procedure for review and approval of payments and retention for Contractors. § 5.5 FINAL PAYMENT § 5.5.1 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Design-Builder no later than 30 days after the Design-Builder has fully performed the Design-Build Contract, including the requirements in Section A.9.10 of Exhibit A, Terms and Conditions, except for the Design-Builder's AIA Document A141 Tm - 2004. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected Init. by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in 7 severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software / at 13:27:11 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: I ( ( "l 4 9 (702523385) responsibility to correct non-conforming Work discovered after final payment or to satisfy other requirements, if any, which extend beyond final payment. ARTICLE 6 DISPUTE RESOLUTION § 6.1 The parties appoint the following individual to serve as a Neutral pursuant to Section A.4.2 of Exhibit A, Terms and Conditions: (Insert the name, address and other information of the individual to serve as a Neutral. If the parties do not select a Neutral, then the provisions of Section A.4.2.2 of Exhibit A, Terms and Conditions, shall apply.) Richard D. Faulkner, 6688 N. Central Expressway, Suite 600, Dallas, Texas 75206; 214.361.4998. § 6.2 If the parties do not resolve their dispute through mediation pursuant to Section A.4.3 of Exhibit A, Terms and Conditions, the method of binding dispute resolution shall be the following: (If the parties do not select a method of binding dispute resolution, then the method of binding dispute resolution shall be by litigation in a court of competent jurisdiction.) (Check one.) [ X ] Arbitration pursuant to Section AAA of Exhibit A, Terms and Conditions [ ] Litigation in a court of competent jurisdiction [ ] Other (Specify) § 6.3 ARBITRATION § 6.3.1 If Arbitration is selected by the parties as the method of binding dispute resolution, then any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to arbitration as provided in Section AAA of Exhibit A, Terms and Conditions. ARTICLE 7 MISCELLANEOUS PROVISIONS § 7.1 The Architect, other design professionals and consultants engaged by the Design-Builder shall be persons or entities duly licensed to practice their professions in the jurisdiction where the Project is located and are listed as follows: (Insert name, address, license number, relationship to Design-Builder and other information.) Name and Address License Number Relationship to Other Information Design-Builder Patterson Architects Architect § 7.2 Consultants, if any, engaged directly by the Owner, their professions and responsibilities are listed below: (Insert name, address, license number, if applicable, and responsibilities to Owner and other information.) Name and Address License Number Responsibilities Other Information to Owner None at this time § 7.3 Separate contractors, if any, engaged directly by the Owner, their trades and responsibilities are listed below: (Insert name, address, license number, if applicable, responsibilities to Owner and other information.) Name and Address License Number Responsibilities Other Information to Owner None at this time § 7.4 The Owner's Designated Representative is: (Insert name, address and other information.) Ms. Pat Howard AIA Document A141TM - 2004. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected Init. by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in 8 severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software / at 13:27:11 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, andisL l~notJor resale. User Notes: 1l 11 (702523385) Brazos County Purchasing Agent 300 East 26`s Street Bryan, Texas § 7.4.1 The Owner's Designated Representative identified above shall be authorized to act on the Owner's behalf with respect to the Project. § 7.5 The Design-Builder's Designated Representative is: (Insert name, address and other information.) Stephen P. Byrne P.O. Box 11184 College Station, Texas 77842 steve_byrne @ verizon. net § 7.5.1 The Design-Builder's Designated Representative identified above shall be authorized to act on the Design- Builder's behalf with respect to the Project. § 7.6 Neither the Owner's nor the Design-Builder's Designated Representative shall be changed without ten days written notice to the other party. § 7.7 Other provisions: None at this time § 7.7.1 Where reference is made in this Agreement to a provision of another Design-Build Document, the reference refers to that provision as amended or supplemented by other provisions of the Design-Build Documents. § 7.7.2 Payments due and unpaid under the Design-Build Contract shall bear interest from the date payment is due at the rate stated below, or in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located. (Insert rate of interest agreed upon, if any.) Ten percent (10% ) per annum (Usury laws and requirements under the Federal Truth in Lending Act, similar state and local consumer credit laws and other regulations at the Owner's and Design-Builder's principal places of business, the location of the Project and elsewhere may affect the validity of this provision. Legal advice should be obtained with respect to deletions or modifications, and also regarding requirements such as written disclosures or waivers.) ARTICLE 8 ENUMERATION OF THE DESIGN-BUILD DOCUMENTS § 8.1 The Design-Build Documents, except for Modifications issued after execution of this Agreement, are enumerated as follows: § 8.1.1 The Agreement is this executed edition of the Standard Form of Agreement Between Owner and Design- Builder, AIA Document A141-2004. § 8.1.2 The Supplementary and other Conditions of the Agreement, if any, are as follows: (Either list applicable documents below or refer to an exhibit attached to this Agreement.) Title of the Supplementary and Other Conditions exhibit: None at this time (Table deleted) § 8.1.3 The Project Criteria, including changes to the Project Criteria proposed by the Design-Builder, if any, and accepted by the Owner, consist of the following: (Either list applicable documents and their dates below or refer to an exhibit attached to this Agreement.) Title of the Project Criteria exhibit: None at this time (Table deleted) § 8.1.4 The Design-Builder's Proposal, dated July 28, 2008 , consists of the following: AIA Document A141 TM - 2004. Copyright @ 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected Init. by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in 9 severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software / at 13:27:11 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: y I'~ O (702523385) (Either list applicable documents below or refer to an exhibit attached to this Agreement.) Title of the Design-Builder's Proposal: Arena Hall Voting Services § 8.1.5 Amendments to the Design-Builder's Proposal, if any, are as follows: (Either list applicable documents below or refer to an exhibit attached to this Agreement.) Title of the Amendments to Design-Builder's Proposal exhibit: None at this time § 8.1.6 The Addenda, if any, are as follows: (Either list applicable documents below or refer to an exhibit attached to this Agreement.) Title of the Addenda exhibit: None at this time (Table deleted) § 8.1.7 Exhibit A, Terms and Conditions. (If the parties agree to substitute terms and conditions other than those contained in AIA Document A141-2004, Exhibit A, Terms and Conditions, then identify such terms and conditions and attach to this Agreement as Exhibit A.) None at this time § 8.1.8 Exhibit B, Determination of the Cost of the Work, if applicable. (If the parties agree to substitute a method to determine the cost of the Work other than that contained in AIA Document A141-2004, Exhibit B, Determination of the Cost of the Work, then identify such other method to determine the cost of the Work and attach to this Agreement as Exhibit B. If the Contract Sum is a Stipulated Sum, then Exhibit B is not applicable.) § 8.1.9 Exhibit C, Insurance and Bonds, if applicable. (Complete AIA Document A141-2004, Exhibit C, Insurance and Bonds or indicate "not applicable. See Exhibit "C" § 8.1.10 Other documents, if any, forming part of the Design-Build Documents are as follows: (Either list applicable documents below or refer to an exhibit attached to this Agreement.) I Title of the Other Documents exhibit: None at this time This Agreeme entered i as of the day and year first written above. L Z - lAak- OWNER (Signal e) DESIGN-B DER (Signature) Randy Sim , Brazos County Judge Stephen P. Byrne, President (Printed name and title) (Printed name and title) AIA Document A141 TM - 2004. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected Init. by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in 10 severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software / at 13:27:11 on 08/1812008 under Order No.1000358556_1 which expires on 6/2/2009 and is not for resale. User Notes: k I 1 -5 i~ 1 (702523385) Additions and Deletions Report for AIA® Document A 141 TM -2004 This Additions and Deletions Report, as defined on page 1 of the associated document, reproduces below all text the author has added to the standard form AIA document in order to complete it, as well as any text the author may have added to or deleted from the original AIA text. Added text is shown underlined. Deleted text is indicated with a horizontal line through the original AIA text. Note: This Additions and Deletions Report is provided for information purposes only and is not incorporated into or constitute any part of the associated AIA document. This Additions and Deletions Report and its associated document were generated simultaneously by AIA software at 13:27:11 on 08/18/2008. PAGE1 AGREEMENT made as of the Twenty Eighth day of Jul -in the year of Two Thousand Eight Brazos County 300 East 26th Street Bryan, Texas 77803 Greenway Constructors, Inc.- Patterson Architects P.O. Box 11184 College Station, Texas 77842 Telephone Number: 979-220-5596 Fax Number: 979-690-1676 Arena Hall Voting Services Tabor Road Bryan, Texas Interior Upgrades to Arena Hall Voting Services PAGE 3 The commencement date will be fixed in a notice to proceed. Not applicable. (Insert provisions, if any, for liquidated damages relating to failure to complete on time. Not applicable. Additions and Deletions Report for AIA Document A141Tm - 2004. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:27:11 on 08/18/2008 under Order No.100035B556_1 which expires on 6/2/2009, and is not for resale. User Notes: I I I a5 (702523385) The Contractor shall achieve Substantial Completion of the interior renovation work not later than October 31, 2008 and the total project within one hundred twenty (120) days after issuance of the site development permit. Interior renovation work October 31, 2008 [ X I Stipulated Sum in accordance with Section 4.2 below; § 4.2.1 The Stipulated Sum shall be Two Hundred Ninety Five Thousand Two Hundred Ninety Eight Dollars and Zero Cents ( $295,298.00 subject to additions and deductions as provided in the Design-Build Documents. None at this time. None at this time PAGE 4 Design Fees $50,000.00 All A/E costs No Assumytions or qualifications are made at this time. Included in the GMT below. § 4.4.3.1 The sum of the Cost of the Work and the Design-Builder's Fee is guaranteed by the Design-Builder not to exceed ( 5_), subject to additions and deductions by changes in the Work as provided in the Design-Build Documents. Such maximum sum is referred to in the Design-Build Documents as the Guaranteed Maximum Price Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Design-Builder without reimbursement by the Owner. PAGE 5 § 5.1.3 Provided that an Application for Payment is received not later than the last day of month, the Owner shall make payment to the Design-Builder not later than the Tenth day of the followins month. If an Application for Payment is received by the Owner after the application date fixed above, payment shall be made by the Owner not later than Five ( 5 ) days after the Owner receives the Application for Payment. PAGE 6 Take that portion of the Contract Sum properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Contract Sum allocated to that portion of the Work in the schedule of values, less retainage of five ( 5 % ) on the Work, other than services provided by design professionals and other consultants retained directly by Additions and Deletions Report for AIA Document A141TM - 2004. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 2 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:27:11 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: t 1 i - 6 3 (702523385) the Design-Builder. Pending final determination of cost to the Owner of Changes in the Work, amounts not in dispute shall be included as provided in Section A.7.3.8 of Exhibit A, Terms and Conditions; .2 Add that portion of the Contract Sum properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the completed construction (or, if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing), less retainage of five ( 5% .2 Add the Design-Builder's Fee, less retainage of ( The Design-Builder's Fee shall be computed upon the Cost of the Work described in the preceding Section 5.3.2.1 at the rate stated in Section 4.3.2; or if the Design-Builder's Fee is stated as a fixed sum in that section, an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work in the preceding section bears to a reasonable estimate of the probable Cost of the Work upon its completion; PAGE7 § 5.3.4 Except with the Owner's prior approval, payments for the Work, other than for services provided by design professionals and other consultants retained directly by the Design-Builder, shall be subject to retainage of not less than ( o The Owner and Design-Builder shall agree on a mutually acceptable procedure for review and approval of payments and retention for Contractors. PAGE 8 Richard D Faulkner, 6688 N. Central Expressway, Suite 600, Dallas, Texas 75206; 214.361.4998. [ X ] Arbitration pursuant to Section AAA of Exhibit A, Terms and Conditions Patterson Architects Architect None at this time None at this time Ms. Pat Howard Brazos County Purchasing Agent 300 East 20h Street Bryan, Texas PAGE 9 Stephen P. Byrne P.O. Box 11184 College Station, Texas 77842 steve byrne@verizon.net Additions and Deletions Report for AIA Document A141 TM - 2004. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 3 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This User doNotes: cument was produced by AIA software at 13:27:11 on 08/1 i /2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for renal 3385) None at this time {-Ten percent (10%) per annum Title of the Supplementary and Other Conditions exhibit: None at this time DOGUFReRt TWO pages Title of the Project Criteria exhibit: None at this time Title Date § 8.1.4 The Design-Builder's Proposal, dated July 28, 2008 , consists of the following: PAGE 10 Title of the Design-Builder's Proposal: Arena Hall Voting Services Title of the Amendments to Design-Builder's Proposal exhibit: None at this time Title of the Addenda exhibit: None at this time N.-Mba Date None at this time See Exhibit "C" Title of the Other Documents exhibit: None at this time Randy Sims, Brazos County Judge Vages Stephen P. Byrne, President Additions and Deletions Report for AIA Document A141 TM - 2004. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 4 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:27:11 on 08/18/2098 ujji r O e.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: O. (702523385) .I I Certification of Document's Authenticity AIA@ Document D401 TM -2003 I, Stephen P. Byrne, hereby certify, to the best of my knowledge, information and belief, that I created the attached final document simultaneously with its associated Additions and Deletions Report and this certification at 13:27:11 on 08/18/2008 under Order No. 10003585561 from AIA Contract Documents software and that in preparing the attached final document I made no changes to the original text of AIA® Document A141TM - 2004 - Standard Form of Agreement Between Owner and Design-Builder, as published by the AIA in its software, other than those additions and deletions shown in the associated Additions and Deletions Report. (Signed) (Title) (5// 9 / 0 8 AIA Document D401 Tm - 2003. Copyright ©1992 and 2003 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 1 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:27:11 on 08/18/2008 under Order No.1000358556 1 which expires on 6/2/2009, and is not for resale. User Notes: (702523385) s v~ ® TM Document A141 - 2004 Exhibit A Terms and Conditions for the following PROJECT: (Name and location or address) Arena Hall Voting Services - Brazos County THE OWNER: (Name and location) Brazos County 300 East 26`h Street Bryan, Texas 77803 THE DESIGN-BUILDER: (Name and location) Greenway Constructors, Inc.- Patterson Architects P.O. Box 11184 College Station, Texas 77842 ADDITIONS AND DELETIONS: The author of this document has added information needed for its completion. The author may also have revised the text of the original AIA standard form. An Additions and Deletions Report that notes added information as well as revisions to the standard form text is available from the author and should be reviewed. A vertical line in the left margin of this document indicates where the author has added necessary information and where the author has added to or deleted from the original AIA text. This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. Consultation with an attorney is also encouraged with respect to professional licensing requirements in the jurisdiction where the Project is located. Init. AIA Document A141 T• - 2004 Exhibit A. Copyright @ 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIAg' Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No. 1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: , I - (1162032265) TABLE OF ARTICLES A.1 GENERAL PROVISIONS A.2 OWNER A.3 DESIGN-BUILDER AA DISPUTE RESOLUTION A.5 AWARD OF CONTRACTS A.6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS A.7 CHANGES IN THE WORK A.8 TIME A.9 PAYMENTS AND COMPLETION A.10 PROTECTION OF PERSONS AND PROPERTY A.11 INSURANCE AND BONDS A.12 UNCOVERING AND CORRECTION OF WORK A.13 MISCELLANEOUS PROVISIONS A.14 TERMINATION OR SUSPENSION OF THE DESIGN-BUILD CONTRACT Init. AIA Document A141 TM - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 2 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which-expRi,# on 6/2/2009, and is not for resale. User Notes: I l ~ (1162032265) ARTICLE A.1 GENERAL PROVISIONS § A.1.1 BASIC DEFINITIONS § A.1.1.1 THE DESIGN-BUILD DOCUMENTS The Design-Build Documents are identified in Section 1.1 of the Agreement. § A.1.1.2 PROJECT CRITERIA The Project Criteria are identified in Section 8.1.3 of the Agreement and may describe the character, scope, relationships, forms, size and appearance of the Project, materials and systems and, in general, their quality levels, performance standards, requirements or criteria, and major equipment layouts. § A.1.1.3 ARCHITECT The Architect is the person lawfully licensed to practice architecture or an entity lawfully practicing architecture identified as such in the Agreement and having a direct contract with the Design-Builder to perform design services for all or a portion of the Work, and is referred to throughout the Design-Build Documents as if singular in number. The term "Architect" means the Architect or the Architect's authorized representative. § A.1.1.4 CONTRACTOR A Contractor is a person or entity, other than the Architect, that has a direct contract with the Design-Builder to perform all or a portion of the construction required in connection with the Work. The term "Contractor" is referred to throughout the Design-Build Documents as if singular in number and means a Contractor or an authorized representative of the Contractor. The term "Contractor" does not include a separate contractor, as defined in Section A.6.1.2, or subcontractors of a separate contractor. § A.1.1.5 SUBCONTRACTOR A Subcontractor is a person or entity who has a direct contract with a Contractor to perform a portion of the construction required in connection with the Work at the site. The term "Subcontractor" is referred to throughout the Design-Build Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. § A.1.1.6 THE WORK The term "Work" means the design, construction and services required by the Design-Build Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Design-Builder to fulfill the Design-Builder's obligations. The Work may constitute the whole or a part of the Project. § A.1.1.7 THE PROJECT The Project is the total design and construction of which the Work performed under the Design-Build Documents may be the whole or a part, and which may include design and construction by the Owner or by separate contractors. § A.1.1.8 NEUTRAL The Neutral is the individual appointed by the parties to decide Claims and disputes pursuant to Section A.4.2.1. § A.1.2 COMPLIANCE WITH APPLICABLE LAWS § A.1.2.1 If the Design-Builder believes that implementation of any instruction received from the Owner would cause a violation of any applicable law, statute, ordinance, building code, rule or regulation, the Design-Builder shall notify the Owner in writing. Neither the Design-Builder nor any Contractor or Architect shall be obligated to perform any act which they believe will violate any applicable law, ordinance, rule or regulation. § A.1.2.2 The Design-Builder shall be entitled to rely on the completeness and accuracy of the information contained in the Project Criteria, but not that such information complies with applicable laws, regulations and codes, which shall be the obligation of the Design-Builder to determine. In the event that a specific requirement of the Project Criteria conflicts with applicable laws, regulations and codes, the Design-Builder shall furnish Work which complies with such laws, regulations and codes. In such case, the Owner shall issue a Change Order to the Design- Builder unless the Design-Builder recognized such non-compliance prior to execution of this Agreement and failed to notify the Owner. Init. AIA Document A141 TM - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 3 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No 1000358556 1 wh~,h expires on 6/212009, and is not for resale. User Notes: (1162032265) § A.1.3 CAPITALIZATION § A.1.3.1 Terms capitalized in these Terms and Conditions include those which are (1) specifically defined, (2) the titles of numbered articles and identified references to sections in the document, or (3) the titles of other documents published by the American Institute of Architects. § A.1.4 INTERPRETATION § A.1.4.1 In the interest of brevity, the Design-Build Documents frequently omit modifying words such as "all" and "any" and articles such as "the" and "an," but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. § A.1.4.2 Unless otherwise stated in the Design-Build Documents, words which have well-known technical or construction industry meanings are used in the Design-Build Documents in accordance with such recognized meanings. § A.1.5 EXECUTION OF THE DESIGN-BUILD DOCUMENTS § A.1.5.1 The Design-Build Documents shall be signed by the Owner and Design-Builder. § A.1.5.2 Execution of the Design-Build Contract by the Design-Builder is a representation that the Design-Builder has visited the site, become generally familiar with local conditions under which the Work is to be performed and correlated personal observations with requirements of the Design-Build Documents. § A.1.6 OWNERSHIP AND USE OF DOCUMENTS AND ELECTRONIC DATA § A.1.6.1 Drawings, specifications, and other documents including those in electronic form, prepared by the Architect and furnished by the Design-Builder are Instruments of Service. The Design-Builder, Design-Builder's Architect and other providers of professional services individually shall retain all common law, statutory and other reserved rights, including copyright in those Instruments of Services furnished by them. Drawings, specifications, and other documents and materials and electronic data are furnished for use solely with respect to this Project. § A.1.6.2 Upon execution of the Design-Build Contract, the Design-Builder grants to the Owner a non-exclusive license to reproduce and use the Instruments of Service solely in connection with the Project, including the Project's further development by the Owner and others retained by the Owner for such purposes, provided that the Owner shall comply with all obligations, including prompt payment of sums when due, under the Design-Build Documents. Subject to the Owner's compliance with such obligations, such license shall extend to those parties retained by the Owner for such purposes, including other design professionals. The Design-Builder shall obtain similar non- exclusive licenses from its design professionals, including the Architect. The Owner shall not otherwise assign or transfer any license herein to another party without prior written agreement of the Design-Builder. Any unauthorized reproduction or use of the Instruments of Service by the Owner or others shall be at the Owner's sole risk and expense without liability to the Design-Builder and its design professionals. Except as provided in Section A.1.6.4, termination of this Agreement prior to completion of the Design-Builder's services to be performed under this Agreement shall terminate this license. § A.1.6.3 Prior to any electronic exchange by the parties of the Instruments of Service or any other documents or materials to be provided by one party to the other, the Owner and the Design-Builder shall agree in writing on the specific conditions governing the format thereof, including any special limitations or licenses not otherwise provided in the Design-Build Documents. § A.1.6.4 If this Agreement is terminated for any reason other than the default of the Owner, each of the Design- Builder's design professionals, including the Architect, shall be contractually required to convey to the Owner a non-exclusive license to use that design professional's Instruments of Service for the completion, use and maintenance of the Project, conditioned upon the Owner's written notice to that design professional of the Owner's assumption of the Design-Builder's contractual duties and obligations to that design professional and payment to that design professional of all amounts due to that design professional and its consultants. If the Owner does not assume the remaining duties and obligations of the Design-Builder to that design professional under this Agreement, then the Owner shall indemnify and hold harmless that design professional from all claims and any expense, including legal fees, which that design professional shall thereafter incur by reason of the Owner's use of such Instruments of Service. The Design-Builder shall incorporate the requirements of this Section A.1.6.4 in all agreements with its design professionals. AIA Document A141 TM - 2004 Exhibit A. Copyright 0 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 4 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: -11 / a ev D (1162032265) § A.1.6.5 Submission or distribution of the Design-Builder's documents to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in derogation of the rights reserved in Section A.1.6.1. ARTICLE A.2 OWNER § A.2.1 GENERAL § A.2.1.1 The Owner is the person or entity identified as such in the Agreement and is referred to throughout the Design-Build Documents as if singular in number. The term "Owner" means the Owner or the Owner's authorized representative. The Owner shall designate in writing a representative who shall have express authority to bind the Owner with respect to all Project matters requiring the Owner's approval or authorization. The Owner shall render decisions in a timely manner and in accordance with the Design-Builder's schedule submitted to the Owner. § A.2.1.2 The Owner shall furnish to the Design-Builder within 15 days after receipt of a written request information necessary and relevant for the Design-Builder to evaluate, give notice of or enforce mechanic's lien rights. Such information shall include a correct statement of the record legal title to the property on which the Project is located, usually referred to as the site, and the Owner's interest therein. § A.2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER § A.2.2.1 Information or services required of the Owner by the Design-Build Documents shall be furnished by the Owner with reasonable promptness. Any other information or services relevant to the Design-Builder's performance of the Work under the Owner's control shall be furnished by the Owner after receipt from the Design-Builder of a written request for such information or services. § A.2.2.2 The Owner shall be responsible to provide surveys, if not required by the Design-Build Documents to be provided by the Design-Builder, describing physical characteristics, legal limitations, and utility locations for the site of this Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements, and adjoining property and structures; adjacent drainage; rights-of-way, restrictions, easements, encroachments, zoning, deed restriction, boundaries, and contours of the site; locations, dimensions, and necessary data pertaining to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All the information on the survey shall be referenced to a Project benchmark. § A.2.2.3 The Owner shall provide, to the extent available to the Owner and if not required by the Design-Build Documents to be provided by the Design-Builder, the results and reports of prior tests, inspections or investigations conducted for the Project involving structural or mechanical systems, chemical, air and water pollution, hazardous materials or environmental and subsurface conditions and information regarding the presence of pollutants at the Project site. § A.2.2.4 The Owner may obtain independent review of the Design-Builder's design, construction and other documents by a separate architect, engineer, and contractor or cost estimator under contract to or employed by the Owner. Such independent review shall be undertaken at the Owner's expense in a timely manner and shall not delay the orderly progress of the Work. § A.2.2.5 The Owner shall cooperate with the Design-Builder in securing building and other permits, licenses and inspections. The Owner shall not be required to pay the fees for such permits, licenses and inspections unless the cost of such fees is excluded from the responsibility of the Design-Builder under the Design-Build Documents. § A.2.2.6 The services, information, surveys and reports required to be provided by the Owner under Section A.2.2, shall be furnished at the Owner's expense, and the Design-Builder shall be entitled to rely upon the accuracy and completeness thereof, except as otherwise specifically provided in the Design-Build Documents or to the extent the Owner advises the Design-Builder to the contrary in writing. § A.2.2.7 If the Owner observes or otherwise becomes aware of a fault or defect in the Work or non-conformity with the Design-Build Documents, the Owner shall give prompt written notice thereof to the Design-Builder. Init. AIA Document A141 TM - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 5 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 612/2009, and is not for resale. User Notes: 1 i I a& f (1162032265) § A.2.2.8 The Owner shall, at the request of the Design-Builder, prior to execution of the Design-Build Contract and promptly upon request thereafter, furnish to the Design-Builder reasonable evidence that financial arrangements have been made to fulfill the Owner's obligations under the Design-Build Documents. § A.2.2.9 The Owner shall communicate through the Design-Builder with persons or entities employed or retained by the Design-Builder, unless otherwise directed by the Design-Builder. § A.2.2.10 The Owner shall furnish the services of geotechnical engineers or other consultants, if not required by the Design-Build Documents to be provided by the Design-Builder, for subsoil, air and water conditions when such services are deemed reasonably necessary by the Design-Builder to properly carry out the design services provided by the Design-Builder and the Design-Builder's Architect. Such services may include, but are not limited to, test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and resistivity tests, and necessary operations for anticipating subsoil conditions. The services of geotechnical engineer(s) or other consultants shall include preparation and submission of all appropriate reports and professional recommendations. § A.2.2.11 The Owner shall promptly obtain easements, zoning variances, and legal authorizations regarding site utilization where essential to the execution of the Owner's program. § A.2.3 OWNER REVIEW AND INSPECTION § A.2.3.1 The Owner shall review and approve or take other appropriate action upon the Design-Builder's submittals, including but not limited to design and construction documents, required by the Design-Build Documents, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Design-Build Documents. The Owner's action shall be taken with such reasonable promptness as to cause no delay in the Work or in the activities of the Design-Builder or separate contractors. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details, such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Design-Builder as required by the Design-Build Documents. § A.2.3.2 Upon review of the design documents, construction documents, or other submittals required by the Design- Build Documents, the Owner shall take one of the following actions: .1 Determine that the documents or submittals are in conformance with the Design-Build Documents and approve them. .2 Determine that the documents or submittals are in conformance with the Design-Build Documents but request changes in the documents or submittals which shall be implemented by a Change in the Work. .3 Determine that the documents or submittals are not in conformity with the Design-Build Documents and reject them. .4 Determine that the documents or submittals are not in conformity with the Design-Build Documents, but accept them by implementing a Change in the Work. .5 Determine that the documents or submittals are not in conformity with the Design-Build Documents, but accept them and request changes in the documents or submittals which shall be implemented by a Change in the Work. § A.2.3.3 The Design-Builder shall submit to the Owner for the Owner's approval, pursuant to Section A.2.3.1, any proposed change or deviation to previously approved documents or submittals. The Owner shall review each proposed change or deviation to previously approved documents or submittals which the Design-Builder submits to the Owner for the Owner's approval with reasonable promptness in accordance with Section A.2.3.1 and shall make one of the determinations described in Section A.2.3.2. § A.2.3.4 Notwithstanding the Owner's responsibility under Section A.2.3.2, the Owner's review and approval of the Design-Builder's documents or submittals shall not relieve the Design-Builder of responsibility for compliance with the Design-Build Documents unless a) the Design-Builder has notified the Owner in writing of the deviation prior to approval by the Owner or, b) the Owner has approved a Change in the Work reflecting any deviations from the requirements of the Design-Build Documents. AIA Document A141'm - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, s may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/212009, and is not for resale. User Notes: It / t1 ~0 1:21 (1162032265) § A.2.3.5 The Owner may visit the site to keep informed about the progress and quality of the portion of the Work completed. However, the Owner shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. Visits by the Owner shall not be construed to create an obligation on the part of the Owner to make on-site inspections to check the quantity or quality of the Work. The Owner shall neither have control over or charge of, nor be responsible for, the construction means, methods, techniques, sequences or procedures, or for the safety precautions and programs in connection with the Work, since these are solely the Design-Builder's rights and responsibilities under the Design-Build Documents, except as provided in Section A.3.3.7. § A.2.3.6 The Owner shall not be responsible for the Design-Builder's failure to perform the Work in accordance with the requirements of the Design-Build Documents. The Owner shall not have control over or charge of and will not be responsible for acts or omissions of the Design-Builder, Architect, Contractors, or their agents or employees, or any other persons or entities performing portions of the Work for the Design-Builder. § A.2.3.7 The Owner may reject Work that does not conform to the Design-Build Documents. Whenever the Owner considers it necessary or advisable, the Owner shall have authority to require inspection or testing of the Work in accordance with Section A.13.5.2, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Owner nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Owner to the Design-Builder, the Architect, Contractors, material and equipment suppliers, their agents or employees, or other persons or entities performing portions of the Work. § A.2.3.8 The Owner may appoint an on-site project representative to observe the Work and to have such other responsibilities as the Owner and the Design-Builder agree to in writing. § A.2.3.9 The Owner shall conduct inspections to determine the date or dates of Substantial Completion and the date of final completion. § A.2.4 OWNER'S RIGHT TO STOP WORK § A.2.4.1 If the Design-Builder fails to correct Work which is not in accordance with the requirements of the Design- Build Documents as required by Section A.12.2 or persistently fails to carry out Work in accordance with the Design-Build Documents, the Owner may issue a written order to the Design-Builder to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, the right of the Owner to stop the Work shall not give rise to a duty on the part of the Owner to exercise this right for the benefit of the Design-Builder or any other person or entity, except to the extent required by Section A.6.1.3. § A.2.5 OWNER'S RIGHT TO CARRY OUT THE WORK § A.2.5.1 If the Design-Builder defaults or neglects to carry out the Work in accordance with the Design-Build Documents and fails within a seven-day period after receipt of written notice from the Owner to commence and continue correction of such default or neglect with diligence and promptness, the Owner may after such seven-day period give the Design-Builder a second written notice to correct such deficiencies within a three-day period. If the Design-Builder within such three-day period after receipt of such second notice fails to commence and continue to correct any deficiencies, the Owner may, without prejudice to other remedies the Owner may have, correct such deficiencies. In such case, an appropriate Change Order shall be issued deducting from payments then or thereafter due the Design-Builder the reasonable cost of correcting such deficiencies. If payments due the Design-Builder are not sufficient to cover such amounts, the Design-Builder shall pay the difference to the Owner. ARTICLE A.3 DESIGN-BUILDER § A.3.1 GENERAL § A.3.1.1 The Design-Builder is the person or entity identified as such in the Agreement and is referred to throughout the Design-Build Documents as if singular in number. The Design-Builder may be an architect or other design professional, a construction contractor, a real estate developer or any other person or entity legally permitted to do business as a design-builder in the location where the Project is located. The term "Design-Builder" means the Design-Builder or the Design-Builder's authorized representative. The Design-Builder's representative is authorized to act on the Design-Builder's behalf with respect to the Project. § A.3.1.2 The Design-Builder shall perform the Work in accordance with the Design-Build Documents. Init. AIA Document A141TM -2004 Exhibit A. Copyright @ 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA"' Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 7 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which, expires on 61212009, and is not for resale. User Notes: 7 I' atr (1162032265) § A.3.2 DESIGN SERVICES AND RESPONSIBILITIES § A.3.2.1 When applicable law requires that services be performed by licensed professionals, the Design-Builder shall provide those services through the performance of qualified persons or entities duly licensed to practice their professions. The Owner understands and agrees that the services performed by the Design-Builder's Architect and the Design-Builder's other design professionals and consultants are undertaken and performed in the sole interest of and for the exclusive benefit of the Design-Builder. § A.3.2.2 The agreements between the Design-Builder and Architect or other design professionals identified in the Agreement, and in any subsequent Modifications, shall be in writing. These agreements, including services and financial arrangements with respect to this Project, shall be promptly and fully disclosed to the Owner upon the Owner's written request. § A.3.2.3 The Design-Builder shall be responsible to the Owner for acts and omissions of the Design-Builder's employees, Architect, Contractors, Subcontractors and their agents and employees, and other persons or entities, including the Architect and other design professionals, performing any portion of the Design-Builder's obligations under the Design-Build Documents. § A.3.2.4 The Design-Builder shall carefully study and compare the Design-Build Documents, materials and other information provided by the Owner pursuant to Section A.2.2, shall take field measurements of any existing conditions related to the Work, shall observe any conditions at the site affecting the Work, and report promptly to the Owner any errors, inconsistencies or omissions discovered. § A.3.2.5 The Design-Builder shall provide to the Owner for Owner's written approval design documents sufficient to establish the size, quality and character of the Project; its architectural, structural, mechanical and electrical systems; and the materials and such other elements of the Project to the extent required by the Design-Build Documents. Deviations, if any, from the Design-Build Documents shall be disclosed in writing. § A.3.2.6 Upon the Owner's written approval of the design documents submitted by the Design-Builder, the Design- Builder shall provide construction documents for review and written approval by the Owner. The construction documents shall set forth in detail the requirements for construction of the Project. The construction documents shall include drawings and specifications that establish the quality levels of materials and systems required. Deviations, if any, from the Design-Build Documents shall be disclosed in writing. Construction documents may include drawings, specifications, and other documents and electronic data setting forth in detail the requirements for construction of the Work, and shall: .1 be consistent with the approved design documents; .2 provide information for the use of those in the building trades; and .3 include documents customarily required for regulatory agency approvals. § A.3.2.7 The Design-Builder shall meet with the Owner periodically to review progress of the design and construction documents. § A.3.2.8 Upon the Owner's written approval of construction documents, the Design-Builder, with the assistance of the Owner, shall prepare and file documents required to obtain necessary approvals of governmental authorities having jurisdiction over the Project. § A.3.2.9 The Design-Builder shall obtain from each of the Design-Builder's professionals and furnish to the Owner certifications with respect to the documents and services provided by such professionals (a) that, to the best of their knowledge, information and belief, the documents or services to which such certifications relate (i) are consistent with the Project Criteria set forth in the Design-Build Documents, except to the extent specifically identified in such certificate, (ii) comply with applicable professional practice standards, and (iii) comply with applicable laws, ordinances, codes, rules and regulations governing the design of the Project; and (b) that the Owner and its consultants shall be entitled to rely upon the accuracy of the representations and statements contained in such certifications. § A.3.2.10 If the Owner requests the Design-Builder, the Architect or the Design-Builder's other design professionals to execute certificates other than those required by Section A.3.2.9, the proposed language of such certificates shall be submitted to the Design-Builder, or the Architect and such design professionals through the Design-Builder, for AIA Document A141 TM -2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 8 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1 0003585561 which j expires on 6/2/2;O9an~ is not for resale. User Notes: I IX (1162032265) review and negotiation at least 14 days prior to the requested dates of execution. Neither the Design-Builder, the Architect nor such other design professionals shall be required to execute certificates that would require knowledge, services or responsibilities beyond the scope of their respective agreements with the Owner or Design-Builder. § A.3.3 CONSTRUCTION § A.3.3.1 The Design-Builder shall perform no construction Work prior to the Owner's review and approval of the construction documents. The Design-Builder shall perform no portion of the Work for which the Design-Build Documents require the Owner's review of submittals, such as Shop Drawings, Product Data and Samples, until the Owner has approved each submittal. § A.3.3.2 The construction Work shall be in accordance with approved submittals, except that the Design-Builder shall not be relieved of responsibility for deviations from requirements of the Design-Build Documents by the Owner's approval of design and construction documents or other submittals such as Shop Drawings, Product Data, Samples or other submittals unless the Design-Builder has specifically informed the Owner in writing of such deviation at the time of submittal and (1) the Owner has given written approval to the specific deviation as a minor change in the Work, or (2) a Change Order or Construction Change Directive has been issued authorizing the deviation. The Design-Builder shall not be relieved of responsibility for errors or omissions in design and construction documents or other submittals such as Shop Drawings, Product Data, Samples or other submittals by the Owner's approval thereof. § A.3.3.3 The Design-Builder shall direct specific attention, in writing or on resubmitted design and construction documents or other submittals such as Shop Drawings, Product Data, Samples or similar submittals, to revisions other than those requested by the Owner on previous submittals. In the absence of such written notice, the Owner's approval of a resubmission shall not apply to such revisions. § A.3.3.4 When the Design-Build Documents require that a Contractor provide professional design services or certifications related to systems, materials or equipment, or when the Design-Builder in its discretion provides such design services or certifications through a Contractor, the Design-Builder shall cause professional design services or certifications to be provided by a properly licensed design professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professionals, if prepared by others, shall bear such design professional's written approval. The Owner shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals. § A.3.3.5 The Design-Builder shall be solely responsible for and have control over all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Design-Build Documents. § A.3.3.6 The Design-Builder shall keep the Owner informed of the progress and quality of the Work. § A.3.3.7 The Design-Builder shall be responsible for the supervision and direction of the Work, using the Design- Builder's best skill and attention. If the Design-Build Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures, the Design-Builder shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences or procedures. If the Design-Builder determines that such means, methods, techniques, sequences or procedures may not be safe, the Design-Builder shall give timely written notice to the Owner and shall not proceed with that portion of the Work without further written instructions from the Owner. If the Design-Builder is then instructed to proceed with the required means, methods, techniques, sequences or procedures without acceptance of changes proposed by the Design-Builder, the Owner shall be solely responsible for any resulting loss or damage. § A.3.3.8 The Design-Builder shall be responsible for inspection of portions of Work already performed to determine that such portions are in proper condition to receive subsequent Work. Init. AIA Document A141 TM - 2004 Exhibit A. Copyright @ 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA"' Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 9 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/1 B/2006 under Order No 10~Q 58556 1 w*h expires on 612/2009, and is not for resale. User Notes: (1162032265) § A.3.4 LABOR AND MATERIALS § A.3.4.1 Unless otherwise provided in the Design-Build Documents, the Design-Builder shall provide or cause to be provided and shall pay for design services, labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. § A.3.4.2 When a material is specified in the Design-Build Documents, the Design-Builder may make substitutions only with the consent of the Owner and, if appropriate, in accordance with a Change Order. § A.3.4.3 The Design-Builder shall enforce strict discipline and good order among the Design-Builder's employees and other persons carrying out the Design-Build Contract. The Design-Builder shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. § A.3.5 WARRANTY § A.3.5.1 The Design-Builder warrants to the Owner that materials and equipment furnished under the Design-Build Documents will be of good quality and new unless otherwise required or permitted by the Design-Build Documents, that the Work will be free from defects not inherent in the quality required or permitted by law or otherwise, and that the Work will conform to the requirements of the Design-Build Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. The Design-Builder's warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the Design-Builder, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. If required by the Owner, the Design-Builder shall furnish satisfactory evidence as to the kind and quality of materials and equipment. § A.3.6 TAXES § A.3.6.1 The Design-Builder shall pay all sales, consumer, use and similar taxes for the Work provided by the Design-Builder which had been legally enacted on the date of the Agreement, whether or not yet effective or merely scheduled to go into effect. § A.3.7 PERMITS, FEES AND NOTICES § A.3.7.1 The Design-Builder shall secure and pay for building and other permits and governmental fees, licenses and inspections necessary for the proper execution and completion of the Work which are customarily secured after execution of the Design-Build Contract and which were legally required on the date the Owner accepted the Design- Builder's proposal. § A.3.7.2 The Design-Builder shall comply with and give notices required by laws, ordinances, rules, regulations and lawful orders of public authorities relating to the Project. § A.3.7.3 It is the Design-Builder's responsibility to ascertain that the Work is in accordance with applicable laws, ordinances, codes, rules and regulations. § A.3.7.4 If the Design-Builder performs Work contrary to applicable laws, ordinances, codes, rules and regulations, the Design-Builder shall assume responsibility for such Work and shall bear the costs attributable to correction. § A.3.8 ALLOWANCES § A.3.8.1 The Design-Builder shall include in the Contract Sum all allowances stated in the Design-Build Documents. Items covered by allowances shall be supplied for such amounts and by such persons or entities as the Owner may direct, but the Design-Builder shall not be required to employ persons or entities to which the Design- Builder has reasonable objection. § A.3.8.2 Unless otherwise provided in the Design-Build Documents: .1 allowances shall cover the cost to the Design-Builder of materials and equipment delivered at the site and all required taxes, less applicable trade discounts; .2 Design-Builder's costs for unloading and handling at the site, labor, installation costs, overhead, profit and other expenses contemplated for stated allowance amounts shall be included in the Contract Sum but not in the allowances; and AIA Document A141 Tm - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 10 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.100035 I of 8556_1 which expires n 6/2/2009, and is not for resale. User Notes: 1 t9C, tIl_1 (1162032265) .3 whenever costs are more than or less than allowances, the Contract Sum shall be adjusted accordingly by Change Order. The amount of the Change Order shall reflect (1) the difference between actual costs and the allowances under Section A.3.8.2.1 and (2) changes in Design-Builder's costs under Section A.3.8.2.2. § A.3.8.3 Materials and equipment under an allowance shall be selected by the Owner in sufficient time to avoid delay in the Work. § A.3.9 DESIGN-BUILDER'S SCHEDULE § A.3.9.1 The Design-Builder, promptly after execution of the Design-Build Contract, shall prepare and submit for the Owner's information the Design-Builder's schedule for the Work. The schedule shall not exceed time limits and shall be in such detail as required under the Design-Build Documents, shall be revised at appropriate intervals as required by the conditions of the Work and Project, shall be related to the entire Project to the extent required by the Design-Build Documents, shall provide for expeditious and practicable execution of the Work and shall include allowances for periods of time required for the Owner's review and for approval of submissions by authorities having jurisdiction over the Project. § A.3.9.2 The Design-Builder shall prepare and keep current a schedule of submittals required by the Design-Build Documents. § A.3.9.3 The Design-Builder shall perform the Work in general accordance with the most recent schedules submitted to the Owner. § A.3.10 DOCUMENTS AND SAMPLES AT THE SITE § A.3.10.1 The Design-Builder shall maintain at the site for the Owner one record copy of the drawings, specifications, addenda, Change Orders and other Modifications, in good order and marked currently to record field changes and selections made during construction, and one record copy of approved Shop Drawings, Product Data, Samples and similar required submittals. These shall be delivered to the Owner upon completion of the Work. § A.3.11 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES § A.3.11.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work by the Design-Builder or a Contractor, Subcontractor, manufacturer, supplier or distributor to illustrate some portion of the Work. § A.3.11.2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other information furnished by the Design-Builder to illustrate materials or equipment for some portion of the Work. § A.3.11.3 Samples are physical examples that illustrate materials, equipment or workmanship and establish standards by which the Work will be judged. § A.3.11.4 Shop Drawings, Product Data, Samples and similar submittals are not Design-Build Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required by the Design-Build Documents the way by which the Design-Builder proposes to conform to the Design-Build Documents. § A.3.11.5 The Design-Builder shall review for compliance with the Design-Build Documents and approve and submit to the Owner only those Shop Drawings, Product Data, Samples and similar submittals required by the Design-Build Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the Owner or of separate contractors. § A.3.11.6 By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the Design- Builder represents that the Design-Builder has determined and verified materials, field measurements and field construction criteria related thereto, or will do so, and has checked and coordinated the information contained within such submittals with the requirements of the Work and of the Design-Build Documents. AIA Document A141 TM - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 1 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1 0003585561 which expires on 6/2/2009, and is not for resale. User Notes: 1,11 A (0 7 (1162032265) § A.3.12 USE OF SITE § A.3.12.1 The Design-Builder shall confine operations at the site to areas permitted by law, ordinances, permits and the Design-Build Documents, and shall not unreasonably encumber the site with materials or equipment. § A.3.13 CUTTING AND PATCHING § A.3.13.1 The Design-Builder shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly. § A.3.13.2 The Design-Builder shall not damage or endanger a portion of the Work or fully or partially completed construction of the Owner or separate contractors by cutting, patching or otherwise altering such construction or by excavation. The Design-Builder shall not cut or otherwise alter such construction by the Owner or a separate contractor except with written consent of the Owner and of such separate contractor; such consent shall not be unreasonably withheld. The Design-Builder shall not unreasonably withhold from the Owner or a separate contractor the Design-Builder's consent to cutting or otherwise altering the Work. § A.3.14 CLEANING UP § A.3.14.1 The Design-Builder shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Design-Build Contract. At completion of the Work, the Design- Builder shall remove from and about the Project waste materials, rubbish, the Design-Builder's tools, construction equipment, machinery and surplus materials. § A.3.14.2 If the Design-Builder fails to clean up as provided in the Design-Build Documents, the Owner may do so and the cost thereof shall be charged to the Design-Builder. § A.3.15 ACCESS TO WORK § A.3.15.1 The Design-Builder shall provide the Owner access to the Work in preparation and progress wherever located. § A.3.16 ROYALTIES, PATENTS AND COPYRIGHTS § A.3.16.1 The Design-Builder shall pay all royalties and license fees. The Design-Builder shall defend suits or claims for infringement of copyrights and patent rights and shall hold the Owner harmless from loss on account thereof, but shall not be responsible for such defense or loss when a particular design, process or product of a particular manufacturer or manufacturers is required or where the copyright violations are contained in drawings, specifications or other documents prepared by or furnished to the Design-Builder by the Owner. However, if the Design-Builder has reason to believe that the required design, process or product is an infringement of a copyright or a patent, the Design-Builder shall be responsible for such loss unless such information is promptly furnished to the Owner. § A.3.17 INDEMNIFICATION § A.3.17.1 To the fullest extent permitted by law, the Design-Builder shall indemnify and hold harmless the Owner, Owner's consultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death or to injury to or destruction of tangible property other than the Work itself, but only to the extent caused by the negligent acts or omissions of the Design-Builder, Architect, a Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge or reduce other rights or obligations of indemnity that would otherwise exist as to a party or person described in this Section A.3.17. § A.3.17.2 In claims against any person or entity indemnified under this Section A.3.17 by an employee of the Design-Builder, the Architect, a Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under Section A.3.17.1 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Design-Builder, the Architect or a Contractor or a Subcontractor under workers' compensation acts, disability benefit acts or other employee benefit acts. AIA Document A141 TO - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 12 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No. 10003585561 which expires on 6/2/2009, and is not for resale. User Notes: v/ 16 9 (1162032265) ARTICLE AA DISPUTE RESOLUTION § A.4.1 CLAIMS AND DISPUTES § A.4.1.1 Definition. A Claim is a demand or assertion by one of the parties seeking, as a matter of right, adjustment or interpretation of Design-Build Contract terms, payment of money, extension of time or other relief with respect to the terms of the Design-Build Contract. The term "Claim" also includes other disputes and matters in question between the Owner and Design-Builder arising out of or relating to the Design-Build Contract. Claims must be initiated by written notice. The responsibility to substantiate Claims shall rest with the party making the Claim. § A.4.1.2 Time Limits on Claims. Claims by either party must be initiated within 21 days after occurrence of the event giving rise to such Claim or within 21 days after the claimant first recognizes the condition giving rise to the Claim, whichever is later. Claims must be initiated by written notice to the other party. § A.4.1.3 Continuing Performance. Pending final resolution of a Claim, except as otherwise agreed in writing or as provided in Section A.9.7.1 and Article A.14, the Design-Builder shall proceed diligently with performance of the Design-Build Contract and the Owner shall continue to make payments in accordance with the Design-Build Documents. § A.4.1.4 Claims for Concealed or Unknown Conditions. If conditions are encountered at the site which are (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Design- Build Documents or (2) unknown physical conditions of an unusual nature which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Design-Build Documents, then the observing party shall give notice to the other party promptly before conditions are disturbed and in no event later than 21 days after first observance of the conditions. The Owner shall promptly investigate such conditions and, if they differ materially and cause an increase or decrease in the Design- Builder's cost of, or time required for, performance of any part of the Work, shall negotiate with the Design-Builder an equitable adjustment in the Contract Sum or Contract Time, or both. If the Owner determines that the conditions at the site are not materially different from those indicated in the Design-Build Documents and that no change in the terms of the Design-Build Contract is justified, the Owner shall so notify the Design-Builder in writing, stating the reasons. Claims by the Design-Builder in opposition to such determination must be made within 21 days after the Owner has given notice of the decision. If the conditions encountered are materially different, the Contract Sum and Contract Time shall be equitably adjusted, but if the Owner and Design-Builder cannot agree on an adjustment in the Contract Sum or Contract Time, the adjustment shall proceed pursuant to Section A.4.2. § A.4.1.5 Claims for Additional Cost. If the Design-Builder wishes to make Claim for an increase in the Contract Sum, written notice as provided herein shall be given before proceeding to execute the Work. Prior notice is not required for Claims relating to an emergency endangering life or property arising under Section A.10.6. § A.4.1.6 If the Design-Builder believes additional cost is involved for reasons including but not limited to (1) an order by the Owner to stop the Work where the Design-Builder was not at fault, (2) a written order for the Work issued by the Owner, (3) failure of payment by the Owner, (4) termination of the Design-Build Contract by the Owner, (5) Owner's suspension or (6) other reasonable grounds, Claim shall be filed in accordance with this Section A.4.1. § A.4.1.7 Claims for Additional Time § A.4.1.7.1 If the Design-Builder wishes to make Claim for an increase in the Contract Time, written notice as provided herein shall be given. The Design-Builder's Claim shall include an estimate of the time and its effect on the progress of the Work. In the case of a continuing delay, only one Claim is necessary. § A.4.1.7.2 If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time, could not have been reasonably anticipated and had an adverse effect on the scheduled construction. § A.4.1.8 Injury or Damage to Person or Property. If either party to the Design-Build Contract suffers injury or damage to person or property because of an act or omission of the other party or of others for whose acts such party is legally responsible, written notice of such injury or damage, whether or not insured, shall be given to the other party within a reasonable time not exceeding 21 days after discovery. The notice shall provide sufficient detail to enable the other party to investigate the matter. AIA Document A141 TM -2004 Exhibit A. Copyright @ 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 13 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No. 1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: 1 ` I 0~ ( 9 (1162032265) § A.4.1.9 If unit prices are stated in the Design-Build Documents or subsequently agreed upon, and if quantities originally contemplated are materially changed in a proposed Change Order or Construction Change Directive so that application of such unit prices to quantities of Work proposed will cause substantial inequity to the Owner or Design-Builder, the applicable unit prices shall be equitably adjusted. § A.4.1.10 Claims for Consequential Damages. Design-Builder and Owner waive Claims against each other for consequential damages arising out of or relating to the Design-Build Contract. This mutual waiver includes: .1 damages incurred by the Owner for rental expenses, for losses of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons; and .2 damages incurred by the Design-Builder for principal office expenses including the compensation of personnel stationed there, for losses of financing, business and reputation, and for loss of profit except anticipated profit arising directly from the Work. This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination in accordance with Article A.14. Nothing contained in this Section A.4.1.10 shall be deemed to preclude an award of liquidated direct damages, when applicable, in accordance with the requirements of the Design-Build Documents. § A.4.1.11 If the enactment or revision of codes, laws or regulations or official interpretations which govern the Project cause an increase or decrease of the Design-Builder's cost of, or time required for, performance of the Work, the Design-Builder shall be entitled to an equitable adjustment in Contract Sum or Contract Time. If the Owner and Design-Builder cannot agree upon an adjustment in the Contract Sum or Contract Time, the Design-Builder shall submit a Claim pursuant to Section A.4.1. § A.4.2 RESOLUTION OF CLAIMS AND DISPUTES § A.4.2.1 Decision by Neutral. If the parties have identified a Neutral in Section 6.1 of the Agreement or elsewhere in the Design-Build Documents, then Claims, excluding those arising under Sections A.10.3 through A.10.5, shall be referred initially to the Neutral for decision. An initial decision by the Neutral shall be required as a condition precedent to mediation of all Claims between the Owner and Design-Builder arising prior to the date final payment is due, unless 30 days have passed after the Claim has been referred to the Neutral with no decision having been rendered by the Neutral. Unless the Neutral and all affected parties agree, the Neutral will not decide disputes between the Design-Builder and persons or entities other than the Owner. § A.4.2.2 Decision by Owner. If the parties have not identified a Neutral in Section 6.1 of the Agreement or elsewhere in the Design-Build Documents then, except for those claims arising under Sections A.10.3 and A.10.5, the Owner shall provide an initial decision. An initial decision by the Owner shall be required as a condition precedent to mediation of all Claims between the Owner and Design-Builder arising prior to the date final payment is due, unless 30 days have passed after the Claim has been referred to the Owner with no decision having been rendered by the Owner. § A.4.2.3 The initial decision pursuant to Sections A.4.2.1 and A.4.2.2 shall be in writing, shall state the reasons therefore and shall notify the parties of any change in the Contract Sum or Contract Time or both. The initial decision shall be final and binding on the parties but subject first to mediation under Section A.4.3 and thereafter to such other dispute resolution methods as provided in Section 6.2 of the Agreement or elsewhere in the Design-Build Documents. § A.4.2.4 In the event of a Claim against the Design-Builder, the Owner may, but is not obligated to, notify the surety, if any, of the nature and amount of the Claim. If the Claim relates to a possibility of a Design-Builder's default, the Owner may, but is not obligated to, notify the surety and request the surety's assistance in resolving the controversy. § A.4.2.5 § A.4.3 MEDIATION § A.4.3.1 Any Claim arising out of or related to the Design-Build Contract, except those waived as provided for in Sections A.4.1.10, A.9.10.4 and A.9.10.5, shall, after initial decision of the Claim or 30 days after submission of the AIA Document A141 TM - 2004 Exhibit A. Copyright m 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 4 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1,0003 58556 1 whi;h expires on /2/2009, and is not for resale. User Notes: JJgq 1 a /7 (1162032265) Claim for initial decision, be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable or other binding dispute resolution proceedings by either party. § A.4.3.2 The parties shall endeavor to resolve their Claims by mediation which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect at the time of the mediation. Request for mediation shall be filed in writing with the other party to the Design-Build Contract and with the National Mediation Academy. The request may be made concurrently with the filing of a demand for arbitration or other binding dispute resolution proceedings but, in such event, mediation shall proceed in advance thereof or of legal or equitable proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. § A.4.3.3 The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. § AAA ARBITRATION § A.4.4.1 Claims, except those waived as provided for in Sections A.4.1.10, A.9.10.4 and A.9.10.5, for which initial decisions have not become final and binding, and which have not been resolved by mediation but which are subject to arbitration pursuant to Sections 6.2 and 6.3 of the Agreement or elsewhere in the Design-Build Documents, shall be decided by arbitration which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect at the time of the arbitration. The demand for arbitration shall be filed in writing with the other party to the Design-Build Contract and with the National Arbitration Institute of the National Mediation Academy. § A.4.4.2 A demand for arbitration may be made no earlier than concurrently with the filing of a request for mediation, but in no event shall it be made after the date when institution of legal or equitable proceedings based on such Claim would be barred by the applicable statute of limitations as determined pursuant to Section A.13.6. § A.4.4.3 An arbitration pursuant to this Section AAA may be joined with an arbitration involving common issues of law or fact between the Owner or Design-Builder and any person or entity with whom the Owner or Design-Builder has a contractual obligation to arbitrate disputes which does not prohibit consolidation or joinder. No other arbitration arising out of or relating to the Design-Build Contract shall include, by consolidation, joinder or in any other manner, an additional person or entity not a party to the Design-Build Contract or not a party to an agreement with the Owner or Design-Builder, except by written consent containing a specific reference to the Design-Build Contract signed by the Owner and Design-Builder and any other person or entities sought to be joined. Consent to arbitration involving an additional person or entity shall not constitute consent to arbitration of any claim, dispute or other matter in question not described in the written consent or with a person or entity not named or described therein. The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity duly consented to by the parties to the Agreement shall be specifically enforceable in accordance with applicable law in any court having jurisdiction thereof. § A.4.4.4 Claims and Timely Assertion of Claims. The party filing a notice of demand for arbitration must assert in the demand all Claims then known to that party on which arbitration is permitted to be demanded. § A.4.4.5 Judgment on Final Award. The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. ARTICLE A.5 AWARD OF CONTRACTS § A.5.1 Unless otherwise stated in the Design-Build Documents or the bidding or proposal requirements, the Design- Builder, as soon as practicable after award of the Design-Build Contract, shall furnish in writing to the Owner the names of additional persons or entities not originally included in the Design-Builder's proposal or in substitution of a person or entity (including those who are to furnish design services or materials or equipment fabricated to a special design) proposed for each principal portion of the Work. The Owner will promptly reply to the Design- Builder in writing stating whether or not the Owner has reasonable objection to any such proposed additional person or entity. Failure of the Owner to reply promptly shall constitute notice of no reasonable objection. AIA Document A141 Tm - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA"' Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 15 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: t - i (1162032265) § A.5.2 The Design-Builder shall not contract with a proposed person or entity to whom which the Owner has made reasonable and timely objection. The Design-Builder shall not be required to contract with anyone to whom the Design-Builder has made reasonable objection. § A.5.3 If the Owner has reasonable objection to a person or entity proposed by the Design-Builder, the Design- Builder shall propose another to whom the Owner has no reasonable objection. If the proposed but rejected additional person or entity was reasonably capable of performing the Work, the Contract Sum and Contract Time shall be increased or decreased by the difference, if any, occasioned by such change, and an appropriate Change Order shall be issued before commencement of the substitute person's or entity's Work. However, no increase in the Contract Sum or Contract Time shall be allowed for such change unless the Design-Builder has acted promptly and responsively in submitting names as required. § A.5.4 The Design-Builder shall not change a person or entity previously selected if the Owner makes reasonable objection to such substitute. § A.5.5 CONTINGENT ASSIGNMENT OF CONTRACTS § A.5.5.1 Each agreement for a portion of the Work is assigned by the Design-Builder to the Owner provided that: .1 assignment is effective only after termination of the Design-Build Contract by the Owner for cause pursuant to Section A. 14.2 and only for those agreements which the Owner accepts by notifying the contractor in writing; and .2 assignment is subject to the prior rights of the surety, if any, obligated under bond relating to the Design-Build Contract. § A.5.5.2 Upon such assignment, if the Work has been suspended for more than 30 days, the Contractor's compensation shall be equitably adjusted for increases in cost resulting from the suspension. ARTICLE A.6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS § A.6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS § A.6.1.1 The Owner reserves the right to perform construction or operations related to the Project with the Owner's own forces and to award separate contracts in connection with other portions of the Project or other construction or operations on the site. The Design-Builder shall cooperate with the Owner and separate contractors whose work might interfere with the Design-Builder's Work. If the Design-Builder claims that delay or additional cost is involved because of such action by the Owner, the Design-Builder shall make such Claim as provided in Section A.4.1. § A.6.1.2 The term "separate contractor" shall mean any contractor retained by the Owner pursuant to Section A.6.1.1. § A.6.1.3 The Owner shall provide for coordination of the activities of the Owner's own forces and of each separate contractor with the work of the Design-Builder, who shall cooperate with them. The Design-Builder shall participate with other separate contractors and the Owner in reviewing their construction schedules when directed to do so. The Design-Builder shall make any revisions to the construction schedule deemed necessary after a joint review and mutual agreement. The construction schedules shall then constitute the schedules to be used by the Design-Builder, separate contractors and the Owner until subsequently revised. § A.6.2 MUTUAL RESPONSIBILITY § A.6.2.1 The Design-Builder shall afford the Owner and separate contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities and shall connect and coordinate the Design-Builder's construction and operations with theirs as required by the Design-Build Documents. § A.6.2.2 If part of the Design-Builder's Work depends for proper execution or results upon design, construction or operations by the Owner or a separate contractor, the Design-Builder shall, prior to proceeding with that portion of the Work, promptly report to the Owner apparent discrepancies or defects in such other construction that would render it unsuitable for such proper execution and results. Failure of the Design-Builder so to report shall constitute an acknowledgment that the Owner's or separate contractor's completed or partially completed construction is fit and proper to receive the Design-Builder's Work, except as to defects not then reasonably discoverable. Init. AIA Document A141'rm - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 16 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556 1 w0ich expires on 6/2/2009, and is not for resale. User Notes: '1 (1162032265) § A.6.2.3 The Owner shall be reimbursed by the Design-Builder for costs incurred by the Owner which are payable to a separate contractor because of delays, improperly timed activities or defective construction of the Design- Builder. The Owner shall be responsible to the Design-Builder for costs incurred by the Design-Builder because of delays, improperly timed activities, damage to the Work or defective construction of a separate contractor. § A.6.2.4 The Design-Builder shall promptly remedy damage wrongfully caused by the Design-Builder to completed or partially completed construction or to property of the Owner or separate contractors. § A.6.2.5 The Owner and each separate contractor shall have the same responsibilities for cutting and patching as are described in Section A.3.13. § A.6.3 OWNER'S RIGHT TO CLEAN UP § A.6.3.1 If a dispute arises among the Design-Builder, separate contractors and the Owner as to the responsibility under their respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish, the Owner may clean up and the Owner shall allocate the cost among those responsible. ARTICLE A.7 CHANGES IN THE WORK § A.7.1 GENERAL § A.7.1.1 Changes in the Work may be accomplished after execution of the Design-Build Contract, and without invalidating the Design-Build Contract, by Change Order or Construction Change Directive, subject to the limitations stated in this Article A.7 and elsewhere in the Design-Build Documents. § A.7.1.2 A Change Order shall be based upon agreement between the Owner and Design-Builder. A Construction Change Directive may be issued by the Owner with or without agreement by the Design-Builder. § A.7.1.3 Changes in the Work shall be performed under applicable provisions of the Design-Build Documents, and the Design-Builder shall proceed promptly, unless otherwise provided in the Change Order or Construction Change Directive. § A.7.2 CHANGE ORDERS § A.7.2.1 A Change Order is a written instrument signed by the Owner and Design-Builder stating their agreement upon all of the following: .1 a change in the Work; .2 the amount of the adjustment, if any, in the Contract Sum; and .3 the extent of the adjustment, if any, in the Contract Time. § A.7.2.2 If the Owner requests a proposal for a change in the Work from the Design-Builder and subsequently elects not to proceed with the change, a Change Order shall be issued to reimburse the Design-Builder for any costs incurred for estimating services, design services or preparation of proposed revisions to the Design-Build Documents. § A.7.2.3 Methods used in determining adjustments to the Contract Sum may include those listed in Section A.7.3.3. § A.7.3 CONSTRUCTION CHANGE DIRECTIVES § A.7.3.1 A Construction Change Directive is a written order signed by the Owner directing a change in the Work prior to agreement on adjustment, if any, in the Contract Sum or Contract Time, or both. The Owner may by Construction Change Directive, without invalidating the Design-Build Contract, order changes in the Work within the general scope of the Design-Build Documents consisting of additions, deletions or other revisions, the Contract Sum and Contract Time being adjusted accordingly. § A.7.3.2 A Construction Change Directive shall be used in the absence of total agreement on the terms of a Change Order. § A.7.3.3 If the Construction Change Directive provides for an adjustment to the Contract Sum, the adjustment shall be based on one of the following methods: .1 mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation; Init. AIA Document A141IM - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 17 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No 1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: ( t` r P1 (1162032265) .2 unit prices stated in the Design-Build Documents or subsequently agreed upon, or equitably adjusted as provided in Section A.4.1.9; .3 cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or percentage fee; or .4 as provided in Section A.7.3.6. § A.7.3.4 Upon receipt of a Construction Change Directive, the Design-Builder shall promptly proceed with the change in the Work involved and advise the Owner of the Design-Builder's agreement or disagreement with the method, if any, provided in the Construction Change Directive for determining the proposed adjustment in the Contract Sum or Contract Time. § A.7.3.5 A Construction Change Directive signed by the Design-Builder indicates the agreement of the Design- Builder therewith, including adjustment in Contract Sum and Contract Time or the method for determining them. Such agreement shall be effective immediately and shall be recorded as a Change Order. § A.7.3.6 If the Design-Builder does not respond promptly or disagrees with the method for adjustment in the Contract Sum, the method and the adjustment shall be determined by the Owner on the basis of reasonable expenditures and savings of those performing the Work attributable to the change, including, in case of an increase in the Contract Sum, a reasonable allowance for overhead and profit. In such case, and also under Section A.7.3.3.3, the Design-Builder shall keep and present, in such form as the Owner may prescribe, an itemized accounting together with appropriate supporting data. Unless otherwise provided in the Design-Build Documents, costs for the purposes of this Section A.7.3.6 shall be limited to the following: .1 additional costs of professional services; .2 costs of labor, including social security, old age and unemployment insurance, fringe benefits required by agreement or custom, and workers' compensation insurance; .3 costs of materials, supplies and equipment, including cost of transportation, whether incorporated or consumed; .4 rental costs of machinery and equipment, exclusive of hand tools, whether rented from the Design- Builder or others; .5 costs of premiums for all bonds and insurance, permit fees, and sales, use or similar taxes related to the Work; and .6 additional costs of supervision and field office personnel directly attributable to the change. § A.7.3.7 The amount of credit to be allowed by the Design-Builder to the Owner for a deletion or change that results in a net decrease in the Contract Sum shall be actual net cost. When both additions and credits covering related Work or substitutions are involved in a change, the allowance for overhead and profit shall be figured on the basis of net increase, if any, with respect to that change. § A.7.3.8 Pending final determination of the total cost of a Construction Change Directive to the Owner, amounts not in dispute for such changes in the Work shall be included in Applications for Payment accompanied by a Change Order indicating the parties' agreement with part or all of such costs. For any portion of such cost that remains in dispute, the Owner shall make an interim determination for purposes of monthly payment for those costs. That determination of cost shall adjust the Contract Sum on the same basis as a Change Order, subject to the right of the Design-Builder to disagree and assert a Claim in accordance with Article A.4. § A.7.3.9 When the Owner and Design-Builder reach agreement concerning the adjustments in the Contract Sum and Contract Time, or otherwise reach agreement upon the adjustments, such agreement shall be effective immediately and shall be recorded by preparation and execution of an appropriate Change Order. § A.7.4 MINOR CHANGES IN THE WORK § A.7.4.1 The Owner shall have authority to order minor changes in the Work not involving adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of the Design-Build Documents. Such changes shall be effected by written order and shall be binding on the Design-Builder. The Design-Builder shall carry out such written orders promptly. Init. AIA Document A141 TO - 2004 Exhibit A. Copyright m 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 18 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order N9.1000358556 1 which expires n 6/2/2009, and is not for resale. User Notes: , (1162032265) ARTICLE A.8 TIME §A.8.1 DEFINITIONS § A.8.1.1 Unless otherwise provided, Contract Time is the period of time, including authorized adjustments, allotted in the Design-Build Documents for Substantial Completion of the Work. § A.8.1.2 The date of commencement of the Work shall be the date stated in the Agreement unless provision is made for the date to be fixed in a notice to proceed issued by the Owner. § A.8.1.3 The date of Substantial Completion is the date determined by the Owner in accordance with Section A.9.8. § A.8.1.4 The term "day" as used in the Design-Build Documents shall mean calendar day unless otherwise specifically defined. § A.8.2 PROGRESS AND COMPLETION § A.8.2.1 Time limits stated in the Design-Build Documents are of the essence of the Design-Build Contract. By executing the Design-Build Contract, the Design-Builder confirms that the Contract Time is a reasonable period for performing the Work. § A.8.2.2 The Design-Builder shall not knowingly, except by agreement or instruction of the Owner in writing, prematurely commence construction operations on the site or elsewhere prior to the effective date of insurance required by Article A.11 to be furnished by the Design-Builder and Owner. The date of commencement of the Work shall not be changed by the effective date of such insurance. Unless the date of commencement is established by the Design-Build Documents or a notice to proceed given by the Owner, the Design-Builder shall notify the Owner in writing not less than five days or other agreed period before commencing the Work to permit the timely filing of mortgages, mechanic's liens and other security interests. § A.8.2.3 The Design-Builder shall proceed expeditiously with adequate forces and shall achieve Substantial Completion within the Contract Time. § A.8.3 DELAYS AND EXTENSIONS OF TIME § A.8.3.1 If the Design-Builder is delayed at any time in the commencement or progress of the Work by an act or neglect of the Owner or of a separate contractor employed by the Owner, or by changes ordered in the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes beyond the Design-Builder's control, or by delay authorized by the Owner pending resolution of disputes pursuant to the Design-Build Documents, or by other causes which the Owner determines may justify delay, then the Contract Time shall be extended by Change Order for such reasonable time as the Owner may determine. § A.8.3.2 Claims relating to time shall be made in accordance with applicable provisions of Section A.4.1.7. § A.8.3.3 This Section A.8.3 does not preclude recovery of damages for delay by either party under other provisions of the Design-Build Documents. ARTICLE A.9 PAYMENTS AND COMPLETION § A.9.1 CONTRACT SUM § A.9.1.1 The Contract Sum is stated in the Design-Build Documents and, including authorized adjustments, is the total amount payable by the Owner to the Design-Builder for performance of the Work under the Design-Build Documents. § A.9.2 SCHEDULE OF VALUES § A.9.2.1 Before the first Application for Payment, where the Contract Sum is based upon a Stipulated Sum or the Cost of the Work plus Contractor's Fee with a Guaranteed Maximum Price, the Design-Builder shall submit to the Owner an initial schedule of values allocated to various portions of the Work prepared in such form and supported by such data to substantiate its accuracy as the Owner may require. This schedule, unless objected to by the Owner, shall be used as a basis for reviewing the Design-Builder's Applications for Payment. The schedule of values may be updated periodically to reflect changes in the allocation of the Contract Sum. Init. AIA Document A141Tm - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA" Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 19 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No.10003585Y56_1 which,expires on 6/2/2009, and is not for resale. User Notes: I 1 I * "1 .155 (1162032265) § A.9.3 APPLICATIONS FOR PAYMENT § A.9.3.1 At least ten days before the date established for each progress payment, the Design-Builder shall submit to the Owner an itemized Application for Payment for operations completed in accordance with the current schedule of values. Such application shall be notarized, if required, and supported by such data substantiating the Design- Builder's right to payment as the Owner may require, such as copies of requisitions from Contractors and material suppliers, and reflecting retainage if provided for in the Design-Build Documents: § A.9.3.1.1 As provided in Section A.7.3.8, such applications may include requests for payment on account of Changes in the Work which have been properly authorized by Construction Change Directives but are not yet included in Change Orders. § A.9.3.1.2 Such applications may not include requests for payment for portions of the Work for which the Design- Builder does not intend to pay to a Contractor or material supplier or other parties providing services for the Design- Builder, unless such Work has been performed by others whom the Design-Builder intends to pay. § A.9.3.2 Unless otherwise provided in the Design-Build Documents, payments shall be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. If approved in advance by the Owner, payment may similarly be made for materials and equipment suitably stored off the site at a location agreed upon in writing. Payment for materials and equipment stored on or off the site shall be conditioned upon compliance by the Design-Builder with procedures satisfactory to the Owner to establish the Owner's title to such materials and equipment or otherwise protect the Owner's interest and shall include the costs of applicable insurance, storage and transportation to the site for such materials and equipment stored off the site. § A.9.3.3 The Design-Builder warrants that title to all Work other than Instruments of Service covered by an Application for Payment will pass to the Owner no later than the time of payment. The Design-Builder further warrants that, upon submittal of an Application for Payment, all Work for which Certificates for Payment have been previously issued and payments received from the Owner shall, to the best of the Design-Builder's knowledge, information and belief, be free and clear of liens, Claims, security interests or encumbrances in favor of the Design- Builder, Contractors, Subcontractors, material suppliers, or other persons or entities making a claim by reason of having provided labor, materials and equipment relating to the Work. § A.9.4 ACKNOWLEDGEMENT OF APPLICATION FOR PAYMENT § A.9.4.1 The Owner shall, within seven days after receipt of the Design-Builder's Application for Payment, issue to the Design-Builder a written acknowledgement of receipt of the Design-Builder's Application for Payment indicating the amount the Owner has determined to be properly due and, if applicable, the reasons for withholding payment in whole or in part. § A.9.5 DECISIONS TO WITHHOLD PAYMENT § A.9.5.1 The Owner may withhold a payment in whole or in part to the extent reasonably necessary to protect the Owner due to the Owner's determination that the Work has not progressed to the point indicated in the Application for Payment or that the quality of Work is not in accordance with the Design-Build Documents. The Owner may also withhold a payment or, because of subsequently discovered evidence, may nullify the whole or a part of an Application for Payment previously issued to such extent as may be necessary to protect the Owner from loss for which the Design-Builder is responsible, including loss resulting from acts and omissions, because of the following: .1 defective Work not remedied; .2 third-party claims filed or reasonable evidence indicating probable filing of such claims unless security acceptable to the Owner is provided by the Design-Builder; .3 failure of the Design-Builder to make payments properly to Contractors or for design services labor, materials or equipment; .4 reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; .5 damage to the Owner or a separate contractor; .6 reasonable evidence that the Work will not be completed within the Contract Time and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or .7 persistent failure to carry out the Work in accordance with the Design-Build Documents. AIA Document A141 TM -2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 20 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order NoA 000358556 1 whirl} ex ires on 6/2/2009, and is not for resale. User Notes: 7,~ (1162032265) § A.9.5.2 When the above reasons for withholding payment are removed, payment will be made for amounts previously withheld. § A.9.6 PROGRESS PAYMENTS § A.9.6.1 After the Owner has issued a written acknowledgement of receipt of the Design-Builder's Application for Payment, the Owner shall make payment of the amount, in the manner and within the time provided in the Design- Build Documents. § A.9.6.2 The Design-Builder shall promptly pay the Architect, each design professional and other consultants retained directly by the Design-Builder, upon receipt of payment from the Owner, out of the amount paid to the Design-Builder on account of each such party's respective portion of the Work, the amount to which each such party is entitled. § A.9.6.3 The Design-Builder shall promptly pay each Contractor, upon receipt of payment from the Owner, out of the amount paid to the Design-Builder on account of such Contractor's portion of the Work, the amount to which said Contractor is entitled, reflecting percentages actually retained from payments to the Design-Builder on account of the Contractor's portion of the Work. The Design-Builder shall, by appropriate agreement with each Contractor, require each Contractor to make payments to Subcontractors in a similar manner. § A.9.6.4 The Owner shall have no obligation to pay or to see to the payment of money to a Contractor except as may otherwise be required by law. § A.9.6.5 Payment to material suppliers shall be treated in a manner similar to that provided in Sections A.9.6.3 and A.9.6.4. § A.9.6.6 A progress payment, or partial or entire use or occupancy of the Project by the Owner, shall not constitute acceptance of Work not in accordance with the Design-Build Documents. § A.9.6.7 Unless the Design-Builder provides the Owner with a payment bond in the full penal sum of the Contract Sum, payments received by the Design-Builder for Work properly performed by Contractors and suppliers shall be held by the Design-Builder for those Contractors or suppliers who performed Work or furnished materials, or both, under contract with the Design-Builder for which payment was made by the Owner. Nothing contained herein shall require money to be placed in a separate account and not be commingled with money of the Design-Builder, shall create any fiduciary liability or tort liability on the part of the Design-Builder for breach of trust or shall entitle any person or entity to an award of punitive damages against the Design-Builder for breach of the requirements of this provision. § A.9.7 FAILURE OF PAYMENT § A.9.7.1 If for reasons other than those enumerated in Section A.9.5.1, the Owner does not issue a payment within the time period required by Section 5.1.3 of the Agreement, then the Design-Builder may, upon seven additional days' written notice to the Owner, stop the Work until payment of the amount owing has been received. The Contract Time shall be extended appropriately and the Contract Sum shall be increased by the amount of the Design-Builder's reasonable costs of shutdown, delay and start-up, plus interest as provided for in the Design-Build Documents. § A.9.8 SUBSTANTIAL COMPLETION § A.9.8.1 Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Design-Build Documents so that the Owner can occupy or use the Work or a portion thereof for its intended use. § A.9.8.2 When the Design-Builder considers that the Work, or a portion thereof which the Owner agrees to accept separately, is substantially complete, the Design-Builder shall prepare and submit to the Owner a comprehensive list of items to be completed or corrected prior to final payment. Failure to include an item on such list does not alter the responsibility of the Design-Builder to complete all Work in accordance with the Design-Build Documents. § A.9.8.3 Upon receipt of the Design-Builder's list, the Owner shall make an inspection to determine whether the Work or designated portion thereof is substantially complete. If the Owner's inspection discloses any item, whether Init. AIA Document A141TM - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 21 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08118/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: (1162032265) or not included on the Design-Builder's list, which is not substantially complete, the Design-Builder shall complete or correct such item. In such case, the Design-Builder shall then submit a request for another inspection by the Owner to determine whether the Design-Builder's Work is substantially complete. § A.9.8.4 In the event of a dispute regarding whether the Design-Builder's Work is substantially complete, the dispute shall be resolved pursuant to Article A.4. § A.9.8.5 When the Work or designated portion thereof is substantially complete, the Design-Builder shall prepare for the Owner's signature an Acknowledgement of Substantial Completion which, when signed by the Owner, shall establish (1) the date of Substantial Completion of the Work, (2) responsibilities between the Owner and Design- Builder for security, maintenance, heat, utilities, damage to the Work and insurance, and (3) the time within which the Design-Builder shall finish all items on the list accompanying the Acknowledgement. When the Owner's inspection discloses that the Work or a designated portion thereof is substantially complete, the Owner shall sign the Acknowledgement of Substantial Completion. Warranties required by the Design-Build Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Acknowledgement of Substantial Completion. § A.9.8.6 Upon execution of the Acknowledgement of Substantial Completion and consent of surety, if any, the Owner shall make payment of retainage applying to such Work or designated portion thereof. Such payment shall be adjusted for Work that is incomplete or not in accordance with the requirements of the Design-Build Documents. § A.9.9 PARTIAL OCCUPANCY OR USE § A.9.9.1 The Owner may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate agreement with the Design-Builder, provided such occupancy or use is consented to by the insurer, if so required by the insurer, and authorized by public authorities having jurisdiction over the Work. Such partial occupancy or use may commence whether or not the portion is substantially complete, provided the Owner and Design-Builder have accepted in writing the responsibilities assigned to each of them for payments, retainage, if any, security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the period for completion or correction of the Work and commencement of warranties required by the Design-Build Documents. When the Design-Builder considers a portion substantially complete, the Design-Builder shall prepare and submit a list to the Owner as provided under Section A.9.8.2. Consent of the Design-Builder to partial occupancy or use shall not be unreasonably withheld. The stage of the progress of the Work shall be determined by written agreement between the Owner and Design-Builder. § A.9.9.2 Immediately prior to such partial occupancy or use, the Owner and Design-Builder shall jointly inspect the area to be occupied or portion of the Work to be used to determine and record the condition of the Work. § A.9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Design-Build Documents. § A.9.10 FINAL COMPLETION AND FINAL PAYMENT § A.9.10.1 Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Owner shall promptly make such inspection and, when the Owner finds the Work acceptable under the Design-Build Documents and fully performed, the Owner shall, subject to Section A.9.10.2, promptly make final payment to the Design-Builder. § A.9.10.2 Neither final payment nor any remaining retained percentage will become due until the Design-Builder submits to the Owner (1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner's property might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied, (2) a certificate evidencing that insurance required by the Design-Build Documents to remain in force after final payment is currently in effect and will not be cancelled or allowed to expire until at least 30 days' prior written notice has been given to the Owner, (3) a written statement that the Design-Builder knows of no substantial reason that the insurance will not be renewable to cover the period required by the Design-Build Documents, (4) consent of surety, if any, to final payment, and (5) if required by the Owner, other data establishing payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of the Design-Build Contract, to the extent and in such form as may be designated by the Owner. If a Contractor refuses to furnish a release or waiver required Init. AIA Document A141 TM -2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 22 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order NoA000358556 1 which eipires on 6/2/2009, and is not for resale. User Notes: (1162032265) by the Owner, the Design-Builder may furnish a bond satisfactory to the Owner to indemnify the Owner against such lien. If such lien remains unsatisfied after payments are made, the Design-Builder shall refund to the Owner all money that the Owner may be liable to pay in connection with the discharge of such lien, including all costs and reasonable attorneys' fees. § A.9.10.3 If, after the Owner determines that the Design-Builder's Work or designated portion thereof is substantially completed, final completion thereof is materially delayed through no fault of the Design-Builder or by issuance of a Change Order or a Construction Change Directive affecting final completion, the Owner shall, upon application by the Design-Builder, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for Work not fully completed or corrected is less than retainage stipulated in the Design-Build Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Design-Builder. Such payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of claims. § A.9.10.4 The making of final payment shall constitute a waiver of Claims by the Owner except those arising from: .1 liens, Claims, security interests or encumbrances arising out of the Design-Build Documents and unsettled; .2 failure of the Work to comply with the requirements of the Design-Build Documents; or .3 terms of special warranties required by the Design-Build Documents. § A.9.10.5 Acceptance of final payment by the Design-Builder, a Contractor or material supplier shall constitute a waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at the time of final Application for Payment. ARTICLE A.10 PROTECTION OF PERSONS AND PROPERTY § A.10.1 SAFETY PRECAUTIONS AND PROGRAMS § A.10.1.1 The Design-Builder shall be responsible for initiating and maintaining all safety precautions and programs in connection with the performance of the Design-Build Contract. § A.10.2 SAFETY OF PERSONS AND PROPERTY § A.10.2.1 The Design-Builder shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to: .1 employees on the Work and other persons who may be affected thereby; .2 the Work and materials and equipment to be incorporated therein, whether in storage on or off the site or under the care, custody or control of the Design-Builder or the Design-Builder's Contractors or Subcontractors; and .3 other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. § A.10.2.2 The Design-Builder shall give notices and comply with applicable laws, ordinances, rules, regulations and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss. § A.10.2.3 The Design-Builder shall erect and maintain, as required by existing conditions and performance of the Design-Build Documents, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. § A.10.2.4 When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the Design-Builder shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. § A.10.2.5 The Design-Builder shall promptly remedy damage and loss (other than damage or loss insured under property insurance required by the Design-Build Documents) to property referred to in Sections A.10.2.1.2 and A.10.2.1.3 caused in whole or in part by the Design-Builder, the Architect, a Contractor, a Subcontractor, or anyone AIA Document A141TM - 2004 Exhibit A. Copyright @ 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 23 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1, which. expires on 6/2/2009, and is not for resale. User Notes: I 1 a7 7 (1162032265) directly or indirectly employed by any of them or by anyone for whose acts they may be liable and for which the Design-Builder is responsible under Sections A.10.2.1.2 and A.10.2.1.3, except damage or loss attributable to acts or omissions of the Owner or anyone directly or indirectly employed by the Owner, or by anyone for whose acts the Owner may be liable, and not attributable to the fault or negligence of the Design-Builder. The foregoing obligations of the Design-Builder are in addition to the Design-Builder's obligations under Section A.3.17. § A.10.2.6 The Design-Builder shall designate in writing to the Owner a responsible individual whose duty shall be the prevention of accidents. § A.10.2.7 The Design-Builder shall not load or permit any part of the construction or site to be loaded so as to endanger its safety. § A.10.3 HAZARDOUS MATERIALS § A.10.3.1 If reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance, including but not limited to asbestos or polychlorinated biphenyl (PCB), encountered on the site by the Design-Builder, the Design-Builder shall, upon recognition or reasonable notice of the condition, immediately stop Work in the affected area and promptly report the condition to the Owner in writing. § A.10.3.2 The Owner shall obtain the services of a licensed laboratory to verify the presence or absence of the material or substance reported by the Design-Builder and, in the event such material or substance is found to be present, to verify that it has been rendered harmless. Unless otherwise required by the Design-Build Documents, the Owner shall furnish in writing to the Design-Builder the names and qualifications of persons or entities who are to perform tests verifying the presence or absence of such material or substance or who are to perform the task of removal or safe containment of such material or substance. The Design-Builder shall promptly reply to the Owner in writing stating whether or not the Design-Builder has reasonable objection to the persons or entities proposed by the Owner. If the Design-Builder has an objection to a person or entity proposed by the Owner, the Owner shall propose another to whom the Design-Builder has no reasonable objection. When the material or substance has been rendered harmless, work in the affected area shall resume upon written agreement of the Owner and Design-Builder. The Contract Time shall be extended appropriately, and the Contract Sum shall be increased in the amount of the Design-Builder's reasonable additional costs of shutdown, delay and start-up, which adjustments shall be accomplished as provided in Article A.7. § A.10.3 (Paragraph deleted) § A.10.4 The Owner shall not be responsible under Section A.10.3 for materials and substances brought to the site by the Design-Builder unless such materials or substances were required by the Design-Build Documents and the Design-Builder advises the Owner in writing of the danger or hazard of such materials or substances. § A.10.5 § A.10.6 EMERGENCIES § A.10.6.1 In an emergency affecting safety of persons or property, the Design-Builder shall act, at the Design- Builder's discretion, to prevent threatened damage, injury or loss. Additional compensation or extension of time claimed by the Design-Builder on account of an emergency shall be determined as provided in Section A.4.1.7 and Article A.7. § A.10.6.2 The Design-Builder shall promptly report in writing to the Owner all accidents arising out of or in connection with the work which caused or may have caused death, personal injury, or property damage, giving full details of the accident and statement(s) of witnesses. In addition, if death, serious personal injury, or serious property damage are caused or may have been caused, the accident shall be reported immediately by telephone or messenger to the Owner. § A.10.6.3 For purposes of this provision, the term "Hazardous Materials" shall mean and refer to any wastes, materials, or other substances of any kind or character that are known or become known or regulated as hazardous or toxic wastes or substances, or which require special handling or treatment, under any applicable federal, state, or local law, code, ordinance, rule, regulation, or order. The Design-Build Contractor shall be responsible for any and all Hazardous Materials brought on site by the Design-Build Contractor, its Contractors, Subcontractors, Sub- subcontractors, or suppliers, or any of their agents or employees, or any other persons or entities performing portions of the Work under direct or indirect contract with the Design-Build Contractor. The Design-Build Contractor shall AIA Document A141 Tm - 2004 Exhibit A. Copyright m 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 24 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No. 1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: i ( 1 q 0 (1162032265) not be responsible for any Hazardous Materials brought on site by the Owner or the Owner's separate contractors or for any Hazardous Materials pre-existing on site as of the date of the Notice to Proceed on the Design Services issued by the Owner. However, the Design-Build Contractor shall notify the Owner in writing and stop Work immediately if it suspects that any Hazardous Materials are pre-existing on site. The Owner shall handle, treat, or remove or cause to be handled, treated, or removed any Hazardous Materials that are pre-existing on site in a time and manner as to avoid unreasonable delay in the Work. Except for the foregoing, the Design-Build Contractor shall prevent the presence, use, generation, release, discharge, storage, disposal, or transportation of Hazardous Materials on, under, in, above, or from the Project in nothing other than in strict compliance with all applicable federal, state, and local laws, codes, ordinances, rules, regulations and orders. The Design-Build Contractor shall indemnify, defend, and hold the Owner harmless from and against: (a) any loss, cost, expense, claim, or liability arising out of any investigation, monitoring, judgment, assessment, clean-up, containment, removal, storage, or restoration work (herein referred to as "Remedial Work") required by, or incurred by, the Owner or any other person, party, or entity in a reasonable belief that such Remedial Work is required by any applicable federal, state, or local law, code, ordinance, rule, regulation, or order, or by any governmental or public agency, authority, or political subdivision having jurisdiction over the construction area; and (b) any claims of third parties for loss, injury, expense, or damage arising out of the presence, release, or discharge of any Hazardous Materials on, under, in, above, to, or from the construction area; to the extent the Design-Build Contractor is responsible for and/or liable for hereunder. In the event any Remedial Work is so required under any applicable federal, state, or local law, code, ordinance, rule, regulation, or order, the Design-Build Contractor shall promptly perform or cause to be performed such Remedial Work in compliance with such law, code, ordinance, rule, regulation, or order at the Design-Build Contractor's sole cost and expense. In the event the Design-Build Contractor shall fail to commence the Remedial Work in a timely fashion, or shall fail to prosecute diligently the Remedial Work to completion, such failure shall constitute an event of default on the part of the Design-Build Contractor under the terms of this Contract, and the Owner, in addition to any other rights or remedies afforded hereunder, may, but shall not be obligated to, cause the Remedial Work to be performed, and the Design-Build Contractor shall promptly reimburse the Owner for the cost and expense thereof upon demand by the Owner. The Design-Build Contractor's duty to indemnify, defend, and hold harmless the Owner as described herein and duty to perform or cause to be performed any Remedial Work as described herein is limited to the Hazardous Materials brought on site by the Design-Build Contractor, its Contractors, Subcontractors, Sub-subcontractors, or suppliers, or any of their agents or employees, or any other persons or entities performing portions of the Work under direct or indirect contract with the Design-Build Contractor, and shall not be construed to include any Hazardous Materials brought on site by the Owner or the Owner's separate contractors or for any Hazardous Materials pre-existing on site as of the date of the Notice to Proceed on the Design Services issued by the Owner, unless the Design-Build Contractor suspected that such Hazardous Materials were pre-existing prior to the issuance of the Notice to Proceed on the Design Services and failed to notify the Owner in accordance with this Section A.10.3.3 or knew or should have known that reasonable precautions of such Hazardous Materials would be inadequate to prevent foreseeable bodily injury or death to persons and failed to notify the Owner in accordance with Section A.10.3.1. § A.10.6.4 The Owner shall not be responsible under Section A.10.6.3 for materials and substances brought to the site by the Design-Build Contractor, unless such materials or substances were required by the Design-Build Documents and the Design-Build Contractor advised the Owner in writing of the dangers or hazards of such materials or substances. § A.10.7 WATER PRECAUTIONS § A.10.7.1 The Design-Build Contractor shall keep all parts of the site, including excavations, free from any accumulation of water, no matter the source or cause. § A.10.7.2 The Design-Build Contractor shall dispose of water in such a manner as to not or will not endanger public health or cause damage or expense to any person or property. The Design-Build Contractor shall also comply with the requirements of any public agencies or authorities having jurisdiction over such matters. If sewers and/or streets are allowed to be used for drainage or disposal of water during construction, the Design-Build Contractor shall maintain and leave such satisfactorily clean upon completion of the Work. § A.10.8 SIGNS § A.10.8.1 The Design-Build Contractor shall not erect or place signs, billboards, or advertisements anywhere on or above the Project site, except as required by law or under Contract. § A.10.8.2 The Design-Build Contractor shall furnish and maintain all necessary signs or symbols required for performance of the Contract and as required by law. AIA Document A141Tm - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This Ale Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 25 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: 1 V T" a $ 1 (1162032265) ARTICLE A.11 INSURANCE AND BONDS § A.11.1 Except as may otherwise be set forth in the Agreement or elsewhere in the Design-Build Documents, the Owner and Design-Builder shall purchase and maintain the following types of insurance with limits of liability and deductible amounts and subject to such terms and conditions, as set forth in this Article A.11. § A.11.2 DESIGN-BUILDER'S LIABILITY INSURANCE § A.11.2.1 The Design-Builder shall purchase from and maintain in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located such insurance as will protect the Design-Builder from claims set forth below that may arise out of or result from the Design-Builder's operations under the Design-Build Contract and for which the Design-Builder may be legally liable, whether such operations be by the Design-Builder, by a Contractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable: .1 claims under workers' compensation, disability benefit and other similar employee benefit acts which are applicable to the Work to be performed; .2 claims for damages because of bodily injury, occupational sickness or disease, or death of the Design- Builder's employees; .3 claims for damages because of bodily injury, sickness or disease, or death of any person other than the Design-Builder's employees; .4 claims for damages insured by usual personal injury liability coverage; .5 claims for damages, other than to the Work itself, because of injury to or destruction of tangible property, including loss of use resulting therefrom; .6 claims for damages because of bodily injury, death of a person or property damage arising out of ownership, maintenance or use of a motor vehicle; .7 claims for bodily injury or property damage arising out of completed operations; and .8 claims involving contractual liability insurance applicable to the Design-Builder's obligations under Section A.3.17. § A.11.2.2 The insurance required by Section A.11.2.1 shall be written for not less than limits of liability specified in the Design-Build Documents or required by law, whichever coverage is greater. Coverages, whether written on an occurrence or claims-made basis, shall be maintained without interruption from date of commencement of the Work until date of final payment and termination of any coverage required to be maintained after final payment. § A.11.2.3 Certificates of insurance acceptable to the Owner shall be filed with the Owner prior to commencement of the Work. These certificates and the insurance policies required by this Section A.11.2 shall contain a provision that coverages afforded under the policies will not be canceled or allowed to expire until at least 30 days' prior written notice has been given to the Owner. If any of the foregoing insurance coverages are required to remain in force after final payment and are reasonably available, an additional certificate evidencing continuation of such coverage shall be submitted with the final Application for Payment as required by Section A.9.10.2. Information concerning reduction of coverage on account of revised limits or claims paid under the General Aggregate, or both, shall be furnished by the Design-Builder with reasonable promptness in accordance with the Design-Builder's information and belief. § A.11.3 OWNER'S LIABILITY INSURANCE § A.11.3.1 The Owner shall be responsible for purchasing and maintaining the Owner's usual liability insurance. § A.11.4 PROPERTY INSURANCE § A.11.4.1 Unless otherwise provided, the Owner shall purchase and maintain, in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located, property insurance written on a builder's risk, "all-risk" or equivalent policy form in the amount of the initial Contract Sum, plus the value of subsequent Design-Build Contract modifications and cost of materials supplied or installed by others, comprising total value for the entire Project at the site on a replacement cost basis without optional deductibles. Such property insurance shall be maintained, unless otherwise provided in the Design-Build Documents or otherwise agreed in writing by all persons and entities who are beneficiaries of such insurance, until final payment has been made as provided in Section A.9.10 or until no person or entity other than the Owner has an insurable interest in the property required by this Section A.11.4 to be covered, whichever is later. This insurance shall include interests of the Owner, Design- Builder, Contractors and Subcontractors in the Project. AIA Document A141 TM - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 26 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by J AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556 1 which a ires on 6/2/2009, and is not for resale. User Notes: I d/ 7 y a (1162032265) § A.11.4.1.1 Property insurance shall be on an "all-risk" or equivalent policy form and shall include, without limitation, insurance against the perils of fire (with extended coverage) and physical loss or damage including, without duplication of coverage, theft, vandalism, malicious mischief, collapse, earthquake, flood, windstorm, falsework, testing and startup, temporary buildings and debris removal, including demolition occasioned by enforcement of any applicable legal requirements, and shall cover reasonable compensation for Design-Builder's services and expenses required as a result of such insured loss. § A.11.4.1.2 If the Owner does not intend to purchase such property insurance required by the Design-Build Contract and with all of the coverages in the amount described above, the Owner shall so inform the Design-Builder in writing prior to commencement of the Work. The Design-Builder may then effect insurance that will protect the interests of the Design-Builder, Contractors and Subcontractors in the Work, and, by appropriate Change Order, the cost thereof shall be charged to the Owner. If the Design-Builder is damaged by the failure or neglect of the Owner to purchase or maintain insurance as described above without so notifying the Design-Builder in writing, then the Owner shall bear all reasonable costs properly attributable thereto. § A.11.4.1.3 . § A.11.4.1.4 This property insurance shall cover portions of the Work stored off the site and also portions of the Work in transit. § A.11.4.1.5 Partial occupancy or use in accordance with Section A.9.9 shall not commence until the insurance company or companies providing property insurance have consented to such partial occupancy or use, by endorsement or otherwise. The Owner and the Design-Builder shall take reasonable steps to obtain consent of the insurance company or companies and shall, without mutual written consent, take no action with respect to partial occupancy or use that would cause cancellation, lapse or reduction of insurance. If during the project construction period the Owner insures properties, real or personal or both at or adjacent to the site by property insurance under policies separate from these insuring the project, or if after final payment, property insurance is to be provided on the completed project through a policy or policies other than those insuring the project during the construction period. The Owner shall waive all rights in accordance with the terms of Section A.11.4.7 for damages caused by fire or other causes of loss covered by this separate property insurance. All separate policies shall provide this waiver of subrogation by endorsement or otherwise. § A.11.4.2 Boiler and Machinery Insurance. The Owner shall purchase and maintain boiler and machinery insurance required by the Design-Build Documents or by law, which shall specifically cover such insured objects during installation and until final acceptance by the Owner; this insurance shall include interests of the Owner, Design- Builder, Contractors and Subcontractors in the Work, and the Owner and Design-Builder shall be named insureds. § A.11.4.3 Loss of Use Insurance. The Owner, at the Owner's option, may purchase and maintain such insurance as will insure the Owner against loss of use of the Owner's property due to fire or other hazards, however caused. § A.11.4.4 If the Design-Builder requests in writing that insurance for risks other than those described herein or other special causes of loss be included in the property insurance policy, the Owner shall, if possible, include such insurance, and the cost thereof shall be charged to the Design-Builder by appropriate Change Order. § A.11.4.5 If during the Project construction period the Owner insures properties, real or personal or both, at or adjacent to the site by property insurance under policies separate from those insuring the Project, or if after final payment property insurance is to be provided on the completed Project through a policy or policies other than those insuring the Project during the construction period, the Owner shall waive all rights in accordance with the terms of Section A.11.4.7 for damages caused by fire or other causes of loss covered by this separate property insurance. All separate policies shall provide this waiver of subrogation by endorsement or otherwise. § A.11.4.6 Before an exposure to loss may occur, the Owner shall file with the Design-Builder a copy of each policy that includes insurance coverages required by this Section A.11.4. Each policy shall contain all generally applicable conditions, definitions, exclusions and endorsements related to this Project. Each policy shall contain a provision that the policy will not be canceled or allowed to expire and that its limits will not be reduced until at least 30 days' prior written notice has been given to the Design-Builder. [nit. AIA Document A141Tm - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA"' Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 27 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: 11 I f'1 Qr 2 (1162032265) § A.11.4.7 Waivers of Subrogation. The Owner and Design-Builder waive all rights against each other and any of their consultants, separate contractors described in Section A.6.1, if any, Contractors, Subcontractors, agents and employees, each of the other, and any of their contractors, subcontractors, agents and employees, for damages caused by fire or other causes of loss to the extent covered by property insurance obtained pursuant to this Section A.11.4 or other property insurance applicable to the Work, except such rights as they have to proceeds of such insurance held by the Owner as fiduciary. The Owner or Design-Builder, as appropriate, shall require of the separate contractors described in Section A.6.1, if any, and the Contractors, Subcontractors, agents and employees of any of them, by appropriate agreements, written where legally required for validity, similar waivers each in favor of other parties enumerated herein. The policies shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, even though the person or entity did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged. § A.11.4.8 A loss insured under Owner's property insurance shall be adjusted by the Owner as fiduciary and made payable to the Owner as fiduciary for the insureds, as their interests may appear, subject to requirements of any applicable mortgagee clause and of Section A.11.4.10. The Design-Builder shall pay Contractors their just shares of insurance proceeds received by the Design-Builder, and, by appropriate agreements, written where legally required for validity, shall require Contractors to make payments to their Subcontractors in similar manner. § A.11.4.9 § A.11.4.10 The Owner as fiduciary shall have power to adjust and settle a loss with insurers unless one of the parties in interest shall object in writing within five days after occurrence of loss to the Owner's exercise of this power.; The Owner as fiduciary shall, in the case of a decision or award, make settlement with insurers in accordance with directions of a decision or award. If distribution of insurance proceeds by arbitration is required, the arbitrators will direct such distribution. § A.11.5 PERFORMANCE BOND AND PAYMENT BOND § A.11.5.1 The Owner shall have the right to require the Design-Builder to furnish bonds covering faithful performance of the Design-Build Contract and payment of obligations arising thereunder, including payment to design professionals engaged by or on behalf of the Design-Builder, as stipulated in bidding requirements or specifically required in the Agreement or elsewhere in the Design-Build Documents on the date of execution of the Design-Build Contract. ARTICLE A.12 UNCOVERING AND CORRECTION OF WORK § A.12.1 UNCOVERING OF WORK § A.12.1.1 If a portion of the Work is covered contrary to the Owner's or a governmental or public authority's request, or to requirements specifically expressed in the Design-Build Documents, it must be uncovered for the Owner's examination and be replaced at the Design-Builder's sole cost and expense without change to or addition to the Contract Time. § A.12.1.2 If a portion of the Work has been covered in which the Owner or a governmental or public authority has not specifically requested to examine prior to its being covered, the Owner or a governmental or public authority may request to see such Work and it shall be uncovered by the Design-Builder. If such Work is in accordance and/or compliance with the Design-Build Documents, the costs of uncovering and replacement shall, by appropriate Change Order, be at the Owner's expense. If such Work is not in accordance and/or compliance with the Design- Build Documents, correction, repair or replacement of the work shall be at the Design-Builder's expense unless the condition was caused by the Owner. § A.12.2 CORRECTION OF WORK § A.12.2.1 BEFORE OR AFTER SUBSTANTIAL COMPLETION. § A.12.2.1.1 The Design-Builder shall promptly correct, repair or replace the Work rejected by the Owner or other governmental or public authority with such power and authority to request or demand such correction, repair or replacement of work, failing to conform to the requirements of the Design-Build Documents, whether discovered before or after Substantial Completion and whether or not fabricated, installed or completed. Costs of correcting, AIA Document A141 TM - 2004 Exhibit A. Copyright @ 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 28 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556-1. ,which ex Tres o~R6/2/2009, and is not for resale. User Notes 8 ! (1162032265) repairing or replacing such rejected or non-conforming Work, including additional testing and inspections, shall be at the Design-Builder's sole cost and expense. § A.12.2.2 AFTER SUBSTANTIAL COMPLETION § A.12.2.2.1 In addition to the Design-Builder's obligations under Section A.3.5, if, within one year after the date of Substantial Completion or after the date for commencement of warranties established under Section A.9.8.5 or by terms of an applicable special warranty required by the Design-Build Documents, any of the Work is found to be defective or not in accordance or compliance with the requirements of the Design-Build Documents, the Design- Builder shall correct, repair or replace it promptly after receipt of written notice from the Owner to do so but not later than thirty (30) days thereof unless the Owner has previously given the Design-Builder a written specific acceptance of such condition. Correction, repair or replacement of defective or non-conforming work shall begin within thirty (30) days of the receipt of written notice from the Owner and shall be completed within a reasonable time thereafter but not later than six (6) months thereof. If the Design-Builder fails to begin work to correct, repair or replace non-conforming Work within thirty (30) days after receipt of written notice from the Owner, the Owner may correct it in accordance with Section A.2.5. This obligation under this section shall survive acceptance of the work under the Design-Builder Contract and termination of same. § A.12.2.2.2 The one-year period for correction of Work shall be extended with respect to portions of Work first performed after Substantial Completion by the period of time between Substantial Completion and the actual performance of the Work. § A.12.2.2.3 § A.12.2.3 The Design-Builder shall remove at its sole cost and expense from the site portions of the Work that are not in accordance or compliance with the requirements of the Design-Build Documents and are neither corrected, repaired or replaced by the Design-Builder nor accepted by the Owner. § A.12.2.4 The Design-Builder shall bear the cost of correcting, repairing or replacing destroyed or damaged construction, whether completed or partially completed, of the Owner or separate contractors caused by the Design- Builder's correction, repair or replacement or removal of Work which is not in accordance or compliance with the requirements of the Design-Build Documents. § A.12.2.5 Nothing contained in this Section A.12.2 shall be construed to establish a period of limitation with respect to other obligations the Design-Builder might have under the Design-Build Documents but relates only to the specific obligation of the Design-Builder to correct, repair or replace the Work, and has no relationship to the time within which the obligation to comply with the Design-Build Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Design-Builder's liability with respect to the Design-Builder's obligations other than specifically to correct, repair or replace the Work. § A.12.2.6 Any cost of repairs to any building not covered by insurance proceeds shall be paid by the Design-Builder. If the Owner must make any repairs, such costs will be deducted from the Contract Sum otherwise be due and payable to the Owner upon request. § A.12.3 ACCEPTANCE OF NONCONFORMING WORK § A.12.3.1 If the Owner prefers to accept Work that is not in accordance or compliance with the requirements of the Design-Build Documents, the Owner may do so instead of requiring its removal and/or correction, in which case the Contract Sum will be equitably adjusted by Change Order if appropriate as determined by the Owner. Such adjustment shall be effected whether or not final payment has been made to the Design-Builder ARTICLE A.13 MISCELLANEOUS PROVISIONS § A.13.1 GOVERNING LAW § A.13.1.1 The validity and interpretation of the Design-Build Contract and the rights and obligations of the parties hereunder shall be governed by the law of the place where the Project is located. The Design-Build Contract is performable and enforceable in Brazos County, Texas where the principal office of the Owner is located and where the work shall be performed and the state courts of Brazos County shall be the sole and exclusive venue for any AIA Document A141 Tm - 2004 Exhibit A. Copyright @ 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 29 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: y 1 ay S (1162032265) litigation, special proceedings or other proceeding as between the parties that may be brought or arise out of, in connection with or by reason of the Design-Build contract. § A.13.2 SUCCESSORS AND ASSIGNS § A.13.2.1 The Owner and Design-Builder respectively bind themselves, their partners, successors, assigns and legal representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Design-Build Documents. Except as provided in Section A.13.2.2, neither party to the Design-Build Contract shall assign the Design-Build Contract as a whole without written consent of the other. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Design-Build Contract. § A.13.2.2 The Owner may, without consent of the Design-Builder, assign the Design-Build Contract to an institutional lender providing construction financing for the Project. In such event, the lender shall assume the Owner's rights and obligations under the Design-Build Documents. The Design-Builder shall execute all consents reasonably required to facilitate such assignment. § A.13.3 WRITTEN NOTICE § A.13.3.1 Any notice to be given under the Design-Build Contract shall be deemed to have been given if reduced to writing and delivered by a nationally recognized personal delivery or courier service or mailed by certified or registered mail, return receipt requested, postage pre-paid, to the party's representative at the addresses set forth herein or to such other address as either party may specify in writing, unless otherwise provided herein. Such notice shall be deemed to have been given five (5) days subsequent to the date it was so delivered or mailed. § A.13.3.2 The Design-Build Contractor may not assign its rights and duties under the Design-Build Contract without the prior written consent of the Owner and formal approval of the Commissioners Court, even if such assignment is due to a change in ownership or affiliation. Any assignment attempted without such prior consent and approval shall be null and void and the Design-Build Contractor shall nevertheless remain legally responsible for all obligations under the Design-Build Contract. Such consent and approval shall not relieve the Design-Build Contractor of liability in the event of a default by its assignee. § A.13.3.3 The Design-Build Contractor shall not assign any monies due or to become due hereunder without the prior written consent of the Owner and formal approval of the Commissioners Court, and of the Design-Build Contractor's surety. A copy of such consent of the surety, together with a copy of the assignment, shall be promptly submitted to the Owner for its records. In the event the Design-Build Contractor assigns its rights to all or any part of any monies due to or to become due under this Design-Build Contract, the instrument of assignment must contain a clause substantially to the effect that it is agreed by the parties that the right of assignees in and to any monies due or to become due to the Design-Build Contractor under the Design-Build Contract shall be subject to prior liens and claims of all persons, firms, and corporations (1) for services rendered; (2) for payment of all laborers and mechanics for labor performed; (3) for payment of all materials and equipment furnished and payment of all materials and equipment used or rented in the performance of the Work; and (4) for payment of any liens, claims, or amounts due to any government entity or any of their funds. Any and all payments to an assignee shall constitute full satisfaction and accord to the Design-Build Contractor of any and all obligations for which said sums are paid. The Owner shall be released from any and all obligation to pay the Design-Build Contractor such payments, until the Owner receives formal written notice of a change from the Design-Build Contractor, and the Design-Build Contractor agrees to indemnify and hold the Owner harmless from and against any and all claims and liabilities arising from the assignment, including, but not limited to, payments of any and all monies under the Design-Build Contract to the Design-Build Contractor. § A.13.4 RIGHTS AND REMEDIES § A.13.4.1 Duties and obligations imposed by the Design-Build Documents and rights and remedies available thereunder shall be in addition to and not a limitation of duties, obligations, rights and remedies otherwise imposed or available by law. § A.13.4.2 No action or failure to act by the Owner or Design-Builder shall constitute a waiver of a right or duty afforded them under the Design-Build Documents, nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed in writing by the parties. AIA Document A141 TM - 2004 Exhibit A. Copyright ® 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, in may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556-1 which expires on 6/2/2009, and is not for resale. User Notes: 1 if d©O IJ (1162032265) § A.13.4.3 Except as provided for in Section A.9.11, pursuit of any remedy provided in the Design-Build Contract shall not preclude pursuit of any other remedies herein provided or any other remedies provided by law or equity, including injunctive relief, nor shall pursuit of any remedy herein provided constitute a forfeiture or waiver of any obligation of the defaulting party hereunder or of any damages accruing by reason of the violation of any of the terms, provisions, and covenants herein contained. No waiver of any term, covenant, condition, or violation of the Design-Build Contract shall be deemed or construed to constitute a waiver of any other violation or breach of any of the terms, provisions, and covenants herein contained, and forbearance to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default. Any waiver of any provision of the Design-Build Contract or violation thereof must be by a written instrument executed by the parties. § A.13.5 TESTS AND INSPECTIONS § A.13.5.1 Tests, inspections and approvals of portions of the Work required by the Design-Build Documents or by laws, codes, ordinances, rules, regulations or orders of public authorities having jurisdiction over such matters shall be made at an appropriate time. Unless otherwise provided, the Design-Builder shall make arrangements for such tests, inspections and approvals with an independent testing laboratory or entity acceptable to the Owner or with the appropriate governmental or public authority, and shall bear all related costs of tests, inspections and approvals. The Design-Builder shall give timely written notice of when and where tests and inspections are to be made so that the Owner may be present for such procedures. § A.13.5.2 If the Owner or governmental or public authorities or agency having jurisdiction determine that portions of the Work require additional testing, inspection or approval not included under Section A.13.5.1, the Owner shall in writing instruct the Design-Builder to make arrangements for such additional testing, inspection or approval by an entity acceptable to the Owner, and the Design-Builder shall give timely written notice to the Owner of when and where tests and inspections are to be made so that the Owner may be present for such procedures. Such costs, except as provided in Section A.13.5.3, shall be at the Owner's expense unless otherwise provided for herein. § A.13.5.3 If such procedures for testing, inspection or approval under Sections A.13.5.1 and A.13.5.2 reveal failure of the portions of the Work to comply with requirements established by the Design-Build Documents, all costs made necessary by such failure, including the cost of those of repeated procedures for testing, inspections and approvals, shall be at the Design-Builder's expense. § A.13.5.4 Required certificates of testing, inspection or approval shall, unless otherwise required by the Design- Build Documents, be secured and maintained by the Design-Builder and promptly delivered to the Owner. § A.13.5.5 If the Owner is to observe tests, inspections or approvals required by the Design-Build Documents, the Owner will do so promptly and, where practicable, at the normal or usual place of testing. § A.13.5.6 Tests or inspections conducted pursuant to the Design-Build Documents shall unless expressly provided otherwise be made promptly to avoid unreasonable delay in the Work. § A.13.6 EQUAL OPPORTUNITY § A.13.6.1 (Paragraphs deleted) The Design-Build Contractor shall maintain policies of employment as follows: § A.13.6.1.1 The Design-Build Contractor and its Contractors and Subcontractors shall not discriminate against any employees or applicants for employment because of race, religion, color, sex, or national origin. The Design-Build Contractor shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, religion, color, sex, or national origin. Such action shall include, but not be limited to, the following: (1) employment, upgrading, demotion, or transfer; (2) recruitment or recruitment advertising; (3) layoff or termination; (4) rates of pay or other forms of compensation; and (5) selection AIA Document A141TM - 2004 Exhibit A. Copyright ® 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA' Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 31 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: r' ` (1162032265) for training, including apprenticeship. The Design-Build Contractor agrees to post or station, in conspicuous places available to employees and applicants for employment, notices setting forth the policies of nondiscrimination. § A.13.6.1.2 The Design-Build Contractor and its Contractors and Subcontractors shall, in all solicitations or advertisements for employment placed by them or on their behalf, state that all qualified applicants will receive consideration for employment without regard to race, religion, color, sex, or national origin. § A.13.7 FISCAL FUNDING CLAUSE § A.13.7.1 Notwithstanding any provisions contained herein, the obligations of the Owner under the Design-Build Contract are expressly contingent upon the availability of funding for each item and obligation contained herein for the term of the Design-Build Contract and any extensions thereto. The Design-Build Contractor, any Contractor, any Subcontractor, any Sub-subcontractor, or any other person or entity directly or indirectly employed by the Design-Build Contractor or performing Work or supplying materials or equipment on the Design-Build Contractor's behalf, or any other person or entity to whom the Design-Build Contractor may be liable to, shall have no right of action against the Owner in the event the Owner is unable to fulfill its obligations under this Design-Build Contract as a result of lack of sufficient funding for any item or obligation from any source utilized to fund the Design-Build Contract or failure to budget or authorize funding for the Design-Build Contract during the current or future fiscal years. In the event that the Owner is unable to fulfill its obligations under the Design-Build Contract as a result of lack of sufficient funding, or if funds become unavailable, the Owner may, in its sole discretion, provide funds from a separate source or may, in its sole discretion, terminate this Design-Build Contract by written notice to the Design- Build Contractor at the earliest possible time under the circumstances. § A.13.8 SEVERABILITY § A.13.8.1 If any provision of the Design-Build Contract is construed or held to be illegal, invalid, void, voidable, or unenforceable, this will not affect the legality, validity, or enforceability of any of the remaining provisions in the Design-Build Contract. The illegal, invalid, or unenforceable provision will be deemed stricken and deleted, but all other provisions shall continue in full force and effect as if the illegal, invalid, or unenforceable provisions had never been incorporated. § A.13.9 SOVEREIGN RAMUNITY § A.13.9.1 Except as provided for in Tex. Loc. Gov't Code § 262.007, the Design-Build Contract shall be expressly made subject to the Owner's Sovereign Immunity from suit pursuant to Title 5 of the Texas Civil Practices and Remedies Code, and all applicable federal and State of Texas laws. The parties expressly agree that no provision of the Design-Build Contract is in any way intended to constitute a waiver of any immunities from suit or from liability that the Owner has by operation of law. § A.13.10 AMENDMENTS AND CHANGES IN THE LAW § A.13.10.1 No modification, amendment, innovation, renewal, or other alteration of the Design-Build Documents shall be effective, unless mutually agreed upon in writing and executed by the parties hereto. Any alteration, addition, or deletion to the terms of the Design-Build Documents that are required by changes in federal or state law are automatically incorporated herein without written amendment to the Design-Build Contract and shall be effective on the date designated by said law. If a change in federal or state law causes in increase or decrease in the Contract Sum and/or Contract Time, the Owner shall issue a change order as agreed to by the parties in accordance with Section A.1.2.2. § A.13.11 COUNTERPARTS, NUMBER/GENDER AND HEADINGS § A.13.11.1 This Design-Build Contract may be executed in multiple counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Words of any gender used in the Design- Build Contract shall be held and construed to include any other gender. Any words in the singular shall include the plural and vice versa, unless the context clearly requires otherwise. Headings herein are for the convenience of reference only and shall not be considered in any interpretation of the Design-Build Contract. § A.13.12 INDEPENDENT CONTRACTOR § A.13.12.1 The Design-Build Contractor, including its employees, agents, representatives, licensees, or any other person or entity directly or indirectly performing Work under the Design-Build Contract or supplying materials or equipment under the Design-Build Contract on the Design-Build Contractor's behalf, is an independent contractor and not an agent, servant, joint enterprise, or employee of the Owner, and is responsible for its own acts, omissions, AIA Document A141 TM - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 32 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No. 10003585561 which expires on 61212009, and is not for resale. User Notes: I1. F p (1162032265) - 1 _ Y forbearance, negligence, and deeds, and for those of its employees, agents, and representatives in conjunction with the performance of services under the Design-Build Contract, and shall be specifically responsible for sufficient supervision and inspection to ensure compliance in every respect with the requirements of the Design-Build Documents. Th--re shall be no contractual relationship between any Contractor, Subcontractor, Sub-subcontractor, agent, employee, or supplier of the Design-Build Contractor and the Owner by virtue of the Design-Build Contract. This Section A.13.12.1 shall not be for the benefit of any other party other than the Owner and the Design-Build Contractor. § A.13.13 CONTRACTING § A.13.13.1 The Design-Build Contractor may enter into agreements with Contractors for the delivery of goods or services or for the performance of portions of the Work as provided for herein, subject to the limitations herein. The costs of all contracted services are included in the amounts payable to the Design-Build Contractor herein. Contracts, if any, entered into by the Design-Build Contractor shall be in writing and subject to all requirements herein. The Design-Build Contractor agrees that it will be solely responsible to the Owner for the performance of the Design-Build Contract, unless otherwise specifically provided herein. The Design-Build Contractor shall pay all Contractors in a timely manner. The Owner shall have the right to prohibit the Design-Build Contractor from using any Contractor, subject to the limitations contained in the Design-Build Documents. § A.13.14 PROMPT PAYMENT ACT § A.13.14.1 The Design-Build Contractor agrees that a temporary delay in making payments due to the Owner's accounting and disbursement procedures shall not place the Owner in default of the Design-Build Contract and shall not render the Owner liable for interest or penalties, provided such delay shall not exceed thirty (30) days after its due date. Any payment not made within thirty (30) days of its due date shall bear interest in accordance with Chapter 2251 of the Texas Government Code. § A.13.15 COMPLIANCE WITH LAWS § A.13.15.1 In providing Work and/or services required by the Design-Build Contract, the Design-Build Contractor must observe and comply with all applicable federal, state, and local statutes, codes, ordinances, rules, and regulations. The Design-Build Contractor shall be responsible for ensuring its compliance with any laws and regulations applicable to its business, including maintaining any necessary licenses and permits. § A.13.16 THIRD PARTIES § A.13.16.1 The obligations of each party to the Design-Build Contract shall inure solely to the benefit of the other party, and no other person or entity shall be a third party beneficiary of the Design-Build Contract or have any right to enforce any obligation created or established under the Design-Build Contract. ARTICLE A.14 TERMINATION OR SUSPENSION OF THE DESIGN/BUILD CONTRACT § A.14.1 TERMINATION BY THE DESIGN-BUILDER § A.14.1.1 The Design-Builder may terminate the Design-Build Contract if the Work is stopped for a period of thirty (30) consecutive days through no act or fault of the Design-Builder or a Contractor, Subcontractor, Suppliers or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Design-Builder, for any of the following reasons: .1 issuance of an order of a court or other governmental or public authority or agency having jurisdiction which requires all Work to be stopped; .2 an act of government, such as a declaration of national emergency which requires all Work to be stopped; .3 the Owner has failed to make payment to the Design-Builder in accordance with the Design-Build Documents; or .4 the Owner has failed to furnish to the Design-Builder promptly, upon the Design-Builder's request, reasonable evidence as required by Section A.2.2.8. § A.14.1.2 The Design-Builder may terminate the Design-Build Contract if, through no act or fault of the Design- Builder or a Contractor, Subcontractor, Supplier or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Design-Builder, repeated suspensions, delays or interruptions of the entire Work by the Owner, as described in Section A.14.3, constitute in the aggregate more than one -hundred (100%) percent of the total number of days scheduled for completion, or sixty (60) days in any 365-day period, whichever is less. AIA Document A141Tm - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This A10 Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 33 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: (1162032265) §A.14.1.3 If one prior of the reasons described in Sections A.14.1.1 or A.14.1.2 exists, the Design-Builder may, upon seven days' written notice to the Owner, terminate the Design-Build Contract and recover from the Owner payment for Work executed and for proven loss with respect to materials, equipment, tools, and construction equipment and machinery, including reasonable overhead, profit and damages which shall be limited to that portion of the Work already completed on the project. The Design-Builder shall submit to the Owner for review a detailed pay request with sufficient documentation reflecting work performed, goods and/or services provided and any and all loses or damages sustained. The Owner will review the pay request to determine if such costs are reasonable. If Owner accepts and agrees to pay, in whole or in part, the costs provided therein, the Owner will make payment to the Design-Builder in accordance with the Design-Build Documents, subject to approval by the Commissioners Court. If the pay request is not resolved to the satisfaction of the Design-Builder then the Design-Builder may submit a claim pursuant to Article A.4. § A.14.1.4 If the Work is stopped for a period of sixty (60) consecutive days through no act or fault of the Design- Builder or a Contractor, Subcontractor or Supplier or their agents or employees or any other persons performing portions of the Work under a direct or indirect contract with the Design-Builder because the Owner has persistently failed to fulfill the Owner's obligations under the Design-Build Documents with respect to matters important to the progress of the Work, the Design-Builder may, upon seven (7)additional days' prior written notice to the Owner, terminate the Design-Build Contract and recover from the Owner as provided in Section A.14.1.3. § A.14.2 TERMINATION BY THE OWNER FOR CAUSE § A.14.2.1 The Owner may terminate the Design-Build Contract if the Design-Builder: .1 persistently or repeatedly refuses or fails to supply enough properly skilled workers or proper materials or supplies; .2 fails to make payment to Contractors or Suppliers for services, materials, supplies or labor in accordance with the respective agreements between the Design-Builder and the Architect and Contractors; .3 persistently disregards laws, codes, ordinances or rules, regulations or orders of a public or governmental authority or agency having jurisdiction; or .4 otherwise is guilty of a substantial or material breach of a provision of the Design-Build Documents. § A.14.2.2 When any of the above reasons exist, the Owner may in the sole discretion and without prejudice to any other rights or remedies of the Owner and after giving the Design-Builder and the Design-Builder's surety, if any, seven (7) days' prior written notice, terminate employment of the Design-Builder and may, in the sole discretion subject to any prior rights of the surety: .1 take possession of the site and of all materials, equipment, tools, and construction equipment and machinery thereon owned by the Design-Builder; .2 accept assignment of contracts, subcontracts, leases or other agreements necessary to complete the work including those pursuant to Section A.5.5.1; and .3 complete the Work by whatever reasonable means or method the Owner may deem expedient. Upon request of the Design-Builder, the Owner shall furnish to the Design-Builder a detailed accounting of the costs incurred by the Owner in completing the Work. § A.14.2.3 When the Owner terminates the Design-Build Contract for one (1) of the reasons stated above in Section A. 14.2.1, the Design-Builder shall not be entitled to receive further payment until the Work is completed and fully performed. In the event that the Design-Build contract is terminated for cause, and such cause is found not to exist, the termination by the Owner will automatically convert to a termination by the Owner for convenience. § A.14.2.4 If the unpaid balance of the Contract Sum exceeds costs of completing the Work and other damages incurred by the Owner, , such excess shall be paid to the Design-Builder. If such costs and damages exceed the unpaid balance, the Design-Builder shall pay the difference to the Owner upon request by the Owner. This obligation will survive termination of the Design-Build contract. § A.14.3 SUSPENSION BY THE OWNER FOR CONVENIENCE § A.14.3.1 The Owner may, without cause, order the Design-Builder in writing to suspend, delay or interrupt the Work in whole or in part for such period of time as the Owner may determine or deem necessary or appropriate. AIA Document A141 Tm - 2004 Exhibit A. Copyright ® 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 34 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires 00,6122/2009, and is not for resale. User Notes: t I J ~ V (1162032265) § A.14.3.2 The Contract Sum and Contract Time shall be adjusted for increases in the cost and time caused by suspension, delay or interruption as described in Section A.14.3.1. An adjustment of the Contract Sum shall include reasonable profit after review and approval of such by the Owner. No adjustment shall be made to the extent: .1 that performance is, was or would have been so suspended, delayed or interrupted by another cause for which the Design-Builder is responsible; or .2 that an equitable adjustment is made or denied under another provision of the Design-Build Contract. § A.14.4 TERMINATION BY THE OWNER FOR CONVENIENCE § A.14.4.1 The Owner may, at any time, terminate the Design-Build Contract for the Owner's convenience and without cause. § A.14.4.2 Upon receipt of written notice from the Owner of such termination for the Owner's convenience, the Design-Builder shall: .1 cease operations and performance of the Design-Build contract as directed by the Owner in the notice; .2 take actions necessary, or that the Owner may direct, for the protection and preservation of the Work; and .3 except for Work directed to be performed prior to the effective date of termination stated in the notice, terminate all existing contracts and purchase orders and enter into no further contracts and purchase orders unless specifically directed otherwise in the notice. § A.14.4.3 In the event of termination for the Owner's convenience prior to commencement of construction, the Design-Builder shall be entitled to receive payment for design services performed, costs incurred by reason of such termination and reasonable overhead and profit on design services not completed. In case of termination for the Owner's convenience after commencement of construction, the Design-Builder shall be entitled to receive payment from the Owner on the same basis as provided in Section A.14.1.3. § A.14.5 TRANSITION SERVICES REQUIRED OF DESIGN-BUILD CONTRACTOR § A.14.5.1 Upon notice of termination, suspension, cancellation, or expiration of the Design-Build Contract, the Owner shall immediately have the right to audit any and all records of the Design-Build Contractor relating to the Design-Build Contract. Moreover, upon the termination, suspension, cancellation, or expiration of the Design-Build Contract, the Design-Build Contractor agrees to transition the Work and/or services provided under the Design- Build Contract in a cooperative manner and provide anything requested from the Owner at no additional cost, including, but not limited to, the following: (I) All Work and services documentation, including all records, books, and data reasonably related to the Design-Build Contract, maintained in accordance with general accounting procedures and identified in a complete, neat, and orderly manner; (ii) A good faith pledge to cooperate with the Owner upon transition of the Work and/or services to another Design-Build Contractor or a contractor or the Owner or separate contractors of the Owner; (iii) Records, books, and data, including electronic data, in a format compatible with the Owner's information technology capabilities, or in a format compatible with a succeeding Design-Build Contractor's or contractor's or separate contractor's information technology capabilities, as determined by the Owner; (iv) Final accounting of all income derived from the Design-Build Contract; (v) Downloading and removal of all the Owner's information from the Design-Build Contractor's equipment and software; and (vi) Removal of the Design-Build Contractor's services without degradation or other adverse affect on the Work. This Section A.14.5.1 shall survive termination, suspension, cancellation, or expiration of the Design- Build Contract. ARTICLE A.15 ASSURANCES OF THE DESIGN-BUILD CONTRACTOR § A.15.1 In providing the Work and/or services required by this Design-Build Contract, the Design-Build Contractor agrees to observe and comply with all requirements, licenses, legal certifications, or inspections required for the Work, services, facilities, equipment, materials, or supplies and all applicable federal, state, and local laws, statutes, codes, ordinances, rules, regulations, and orders. The Design-Build Contractor's failure to comply with this Section A.15.1 shall be treated as a default and/or breach of the Design-Build Contract. § A.15.2 The Design-Build Contractor assures that it will not transfer or assign its interest in the Design-Build Contract without the prior written consent of the Owner and formal approval of the Commissioners Court. The Design-Build Contractor understands that in the event that all or substantially all of the Design-Build Contractor's assets are acquired by another entity, the Design-Build Contractor is still obligated to fulfill the terms and conditions Init. AIA Document A141Tm - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 35 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software ser Notes: at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. ~.1_ / (1162032265) / U of the Design-Build Contract. § A.15.3 The Design-Build Contractor, by acceptance of the terms of the Design-Build Contract, agrees and ensures that employees or agents providing Work and/or services under the Design-Build Contractare duly licensed and/or qualified to perform the required Work and/or services. The Design-Build Contractor further agrees and ensures that all licenses or permits necessary to perform the required Work and/or services are current and that the Owner will be notified immediately if such licenses or permits become invalid during performance of the Design-Build Contract. § A.15.4 The Design-Build Contractor assures that no person will, on the grounds of race, creed, color, handicap, disability, national origin, sex, political affiliation, or beliefs, be excluded from, be denied the benefit of, or be subjected to discrimination under any activity funded in whole or part under this Design-Build Contract. The Design-Build Contractor agrees to comply, if applicable, with all federal and state statutes relating to nondiscrimination, including, but not limited to: Title VI of the Civil Rights Act of 1964 (P.L. 88-352), which prohibits discrimination on the basis of race, color, or national origin; Title IX of the Education Amendments of 1972, as amended (20 U.S.C. SS 1681-1683, and 1685-1686), which prohibits discrimination on the basis of sex; Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C.S 794), which prohibits discrimination on the basis of handicaps; the Americans with Disabilities Act of 1990 (P.L. 101-336), which prohibits discrimination on the basis of disabilities; the Age Discrimination Act of 1975, as amended (42 U.S.C. SS 6101-6107), which prohibits discrimination on the basis of age; the Drug Abuse Office and Treatment Act of 1972 (P.L. 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (P.L. 91-616), as amended, relating to nondiscrimination on the basis of alcohol and drug abuse patient records; and the requirements of any other nondiscrimination statute(s) which may apply. § A.15.5 The Design-Build Contractor agrees to adhere to confidentiality requirements, as applicable, for the Work and/or services performed for the Owner under the Design-Build Documents, and any other confidentiality provisions or laws, whether federal or state, relating to the Work and/or services being providing hereunder. § A.15.6 The Design-Build Contractor assures that it will not use any information, documents, or data provided to the Design-Build Contractor by the Owner for any proprietary purposes and shall not copy, sell, exchange, disclose, or otherwise provide to others or use any information, documents, or data reasonably related to this Design-Build Contract for its own proprietary interests. § A.15.7 The Design-Build Contractor shall comply with all federal, state, and local laws, statutes, ordinances, rules, and regulations in effect as of the effective date of the Design-Build Contract, and orders and decrees of any courts or administrative bodies or tribunals in any matter affecting the performance of the Design-Build Contract, including, without limitation, workers' compensation laws, minimum and maximum salary and wage statutes and regulations, licensing laws and regulations, and non-discrimination laws and regulations. When required, the Design-Build Contractor shall furnish to the Owner satisfactory proof of compliance therewith. § A.15.8 The Design-Build Contractor shall have a drug and alcohol free work place policy. The Design-Build Contractor shall also require that all contracts between itself and Contractors performing Work and/or services under the Design-Build Contract also comply with said requirements. § A.15.9 Pursuant to Article 2.45 of the Business Corporation Act, Texas Civil Statutes, which prohibits the Owner from entering into a contract with a corporation that is delinquent in paying taxes under Chapter 171 of the Texas Tax Code, the Design-Build Contractor, by executing this Design-Build Contract, hereby certifies that it is not delinquent in its Texas franchise tax payments, or that it is exempt from, or not subject to such a tax. A false statement concerning the Design-Build Contractor's franchise tax status shall constitute a default or breach of this Design-Build Contract and the Owner may terminate the Design-Build Contract for cause at the sole option of the Owner. §A.15.10 The Design-Build Contractor certifies that neither it nor any of its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in the Design- Build Contract by any federal or state department or agency. AIA Document At 41Tu - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 36 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:29:51 on 08/1812008 under Order No.100035855C~1 which expires on 6/2/2009, and is not for resale. User Notes: 1 11 !`mil a (1162032265) § A.15.11 The Design-Build Contractor shall pay all Contractors and suppliers in a timely manner. The Owner shall have no liability to any Contractors, Subcontractors, Sub-subcontractors, or suppliers in the event the Design-Build Contractor does not pay or delays payment to any Contractors. At termination or expiration of the Design-Build Contract, the Design-Build Contractor shall deliver to the Owner an affidavit of all bills paid. Final payment may, in the sole discretion of the Owner, be contingent upon receipt of such affidavits as resolution of all accounting for which the Owner is or may be liable under the Design-Build Contract. § A.15.12 Failure of the Design-Build Contractor to comply with any of these assurances or any other requirements specified within the Design-Build Document will put the Design-Build Contractor in default and/or breach of the Design-Build Contract and may result, at the sole discretion of the Owner, in the withholding of payments and the withholding of future awards, in addition to any other remedies permitted by law. § A.16 ACCEPTANCES AND SIGNATORY WARRANTY § A.16.1 The duly authorized representatives of the Design-Build Contractor and the Owner accept the terms of the Design-Build Contract in full. § A.16.2 The person or persons signing and executing the Design-Build Contract on behalf of the Design-Build Contractor, or representing themselves as signing and executing the Design-Build Contract on behalf of the Design- Build Contractor, do hereby warrant and guarantee that he, she, or they have been duly authorized by the Design- Build Contractor to execute the Design-Build Contract on behalf of the Design-Build Contractor and to validly and legally bind the Design-Build Contractor to all terms, conditions, and provisions of the Design-Build Documents. The Design-Build Contractor shall furnish to the Owner a corporate resolution authorizing signatory authority. Init. AIA Document A141 TM - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA7 Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 37 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: ' I as (1162032265) Additions and Deletions Report for AIA® Document A 141 TM - 2004 Exhibit A This Additions and Deletions Report, as defined on page 1 of the associated document, reproduces below all text the author has added to the standard form AIA document in order to complete it, as well as any text the author may have added to or deleted from the original AIA text. Added text is shown underlined. Deleted text is indicated with a horizontal line through the original AIA text. Note: This Additions and Deletions Report is provided for information purposes only and is not incorporated into or constitute any part of the associated AIA document. This Additions and Deletions Report and its associated document were generated simultaneously by AIA software at 13:29:51 on 08/18/2008. PAGE1 Arena Hall Voting Services - Brazos County Brazos County 300 East 26 h Street Bryan, Texas 77803 Greenway Constructors, Inc.- Patterson Architects P.O. Box 11184 College Station, Texas 77842 PAGE 14 § A.4.2.5 lien, if a Claim r-elates to or- is the subject of a meehanie's aeeer-danee with applieable law to eemply with the lien notiee or- filing deadlines prior- to initial r-eselation of the claim. PAGE 15 § A.4.3.2 The parties shall endeavor to resolve their Claims by mediation which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect at the time of the mediation. Request for mediation shall be filed in writing with the other party to the Design-Build Contract and with the . National Mediation Academy. The request may be made concurrently with the filing of a demand for arbitration or other binding dispute resolution proceedings but, in such event, mediation shall proceed in advance thereof or of legal or equitable proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. § A.4.4.1 Claims, except those waived as provided for in Sections A.4.1.10, A.9.10.4 and A.9.10.5, for which initial decisions have not become final and binding, and which have not been resolved by mediation but which are subject to arbitration pursuant to Sections 6.2 and 6.3 of the Agreement or elsewhere in the Design-Build Documents, shall be decided by arbitration which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect at the time of the arbitration. The demand for arbitration shall be filed in writing with the other party to the Design-Build Contract and with the .National Arbitration Institute of the National Mediation Academy. PAGE 24 Additions and Deletions Report for AIA Document A141 TM - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 1 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/20)" 8 under Order No.1000 58556_1 which expires on 6/2/2009, and is not for resale. User Notes: C 1 a ~ ,27 (1162032265) § A.10.3.1 If reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance, including but not limited to asbestos or polychlorinated biphenyl (PCB), encountered on the site by the Design-Builder, the Design-Builder shall, upon r-eeagaizin-,-, cognition or reasonable notice of the condition, immediately stop Work in the affected area and promptly report the condition to the Owner-.Owner in writing. 6 A.10.3 § AA 0.3.3 To the 1 and against Claim resulting fr-effl Pe the 'late "f tl,e A b "mrrvrmcxar. § A.10.4 The Owner shall not be responsible under Section A.10.3 for materials and substances brought to the site by the Design-Builder unless such materials or substances were required by the Design-Build Deeuments:Documents and the Design-Builder advises the Owner in writing of the danger or hazard of such materials or substances. § A.10.5 , witheut negligenee an the pai4 of the Design Buildef, the Design Builder- is held liable for- the sest of Design Build Peetiments, the Owner- shall indeRinify the Design Builder- fer- a4l east and expease ther-eby inetiffed. $ A.10.6.2 The Design-Builder shall promptly report in writing to the Owner all accidents arising out of or in connection with the work which caused or may have caused death, personal injury, or property damage, giving full details of the accident and statement(s) of witnesses. In addition, if death, serious personal injury, or serious property damage are caused or may have been caused the accident shall be reported immediately by telephone or messenger to the Owner. § A.10.6.3 For purposes of this provision the term "Hazardous Materials" shall mean and refer to any wastes, materials or other substances of any kind or character that are known or become known or regulated as hazardous or toxic wastes or substances or which require special handling or treatment, under any applicable federal, state, or local law, code ordinance rule regulation or order. The Design-Build Contractor shall be responsible for any and all Hazardous Materials brought on site by the Design-Build Contractor, its Contractors, Subcontractors, Sub- subcontractors or suppliers or any of their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Design-Build Contractor. The Design-Build Contractor shall not be responsible for any Hazardous Materials brought on site by the Owner or the Owner's separate contractors or for any Hazardous Materials pre-existing on site as of the date of the Notice to Proceed on the Design Services issued by the Owner. However the Design-Build Contractor shall notify the Owner in writing and stop Work immediately if it suspects that any Hazardous Materials are pre-existing on site. The Owner shall handle, treat, or remove or cause to be handled treated or removed any Hazardous Materials that are pre-existing on site in a time and manner as to avoid unreasonable delay in the Work. Except for the foregoing, the Design-Build Contractor shall prevent the presence use generation release discharge, storage, disposal, or transportation of Hazardous Materials on under, in above or from the Project in nothing other than in strict compliance with all applicable federal state and local laws codes ordinances, rules, regulations and orders. The Design-Build Contractor shall indemnify, defend and hold the Owner harmless from and against: (a) any loss, cost, expense, claim, or liability arising out of any investigation, monitoring, judgment, assessment, clean-up, containment, removal, storage, or restoration work (herein referred to as "Remedial Work") required by, or incurred by, the Owner or any other person ]arty, or entity in a reasonable belief that such Remedial Work is required by any applicable federal, state, or local law, code ordinance rule regulation or order, or by any governmental or public agency, authority, or political Additions and Deletions Report for AIA Document A141 Tm - 2004 Exhibit A. Copyright @ 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 2 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No. 10003585561 which expires on 6/2/2009, and is not for resale. User Notes: I J1 d' C?_C (1162032265) subdivision having jurisdiction over the construction area; and (b) any claims of third parties for loss injury, expense, or damage arising out of the presence, release, or discharge of any Hazardous Materials on, under, in above, to, or from the construction area, to the extent the Design-Build Contractor is responsible for and/or liable for hereunder. In the event anv Remedial Work is so required under any applicable federal, state or local law, code ordinance, rule, regulation, or order, the Design-Build Contractor shall promptly perform or cause to be performed such Remedial Work in compliance with such law, code, ordinance, rule, regulation, or order at the Design-Build Contractor's sole cost and expense. In the event the Design-Build Contractor shall fail to commence the Remedial Work in a timely fashion, or shall fail to prosecute diligently the Remedial Work to completion such failure shall constitute an event of default on the part of the Design-Build Contractor under the terms of this Contract and the Owner, in addition to any other rights or remedies afforded hereunder. may, but shall not be obligated to cause the Remedial Work to be performed, and the Design-Build Contractor shall promptly reimburse the Owner for the cost and expense thereof upon demand by the Owner. The Design-Build Contractor's duty to indemnify, defend, and hold harmless the Owner as described herein and duty to perform or cause to be performed any Remedial Work as described herein is limited to the Hazardous Materials brought on site by the Design-Build Contractor, its Contractors. Subcontractors. Sub-subcontractors, or suppliers, or any of their agents or employees or any other persons or entities performing _portions of the Work under direct or indirect contract with the Design-Build Contractor, and shall not be construed to include any Hazardous Materials brought on site by the Owner or the Owner's separate contractors or for any Hazardous Materials pre-existing on site as of the date of the Notice to Proceed on the Design Services issued by the Owner, unless the Design-Build Contractor suspected that such Hazardous Materials were pre-existing prior to the issuance of the Notice to Proceed on the Design Services and failed to notify the Owner in accordance with this Section A.10.3.3 or knew or should have known that reasonable precautions of such Hazardous Materials would be inadequate to prevent foreseeable bodily injury or death to persons and failed to notify the Owner in accordance with Section A.10.3.1. § A,10.6.4 The Owner shall not be responsible under Section A.10.6.3 for materials and substances brought to the site by the Design-Build Contractor, unless such materials or substances were required by the Design-Build Documents and the Design-Build Contractor advised the Owner in writing of the dangers or hazards of such materials or substances. § A.10.7 WATER PRECAUTIONS § A.10.7.1 The Design-Build Contractor shall keep all parts of the site including excavations free from any accumulation of water, no matter the source or cause. § A.10.7.2 The Design-Build Contractor shall dispose of water in such a manner as to not or will not endanger public health or cause damage or expense to any person or property. The Design-Build Contractor shall also comply with the requirements of any public agencies or authorities having Jurisdiction over such matters. If sewers and/or streets are allowed to be used for drainage or disposal of water during construction, the Design-Build Contractor shall maintain and leave such satisfactorily clean upon completion of the Work. § A.10.8 SIGNS § A.10.8.1 The Design-Build Contractor shall not erect or place signs billboards or advertisements anywhere on or above the Project site, except as required by law or under Contract. § A.10.8.2 The Design-Build Contractor shall furnish and maintain all necessary signs or symbols required for performance of the Contract and as required by law. PAGE 27 § A.11.4.1.3 , dedustibles.. § A.11.4.1.5 Partial occupancy or use in accordance with Section A.9.9 shall not commence until the insurance company or companies providing property insurance have consented to such partial occupancy or use, by endorsement or otherwise. The Owner and the Design-Builder shall take reasonable steps to obtain consent of the insurance company or companies and shall, without mutual written consent, take no action with respect to partial occupancy or use that would cause cancellation, lapse or reduction of insurance. If during the project construction period the Owner insures properties, real or personal or both at or adjacent to the site by property insurance under policies separate from these insuring the project or if after final payment property insurance is to be provided on Additions and Deletions Report for AIA Document A141 Tm - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 3 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/1 8/2(q$ nder Order,~4o 1(003585 6_1 which expires on 6/2/2009, and is not for resale. User Notes: w; 1 a/f, (1162032265) the completed project through a policy or policies other than those insuring the project during the construction period The Owner shall waive all rights in accordance with the terms of Section A.11.4.7 for damages caused by fire or other causes of loss covered by this separate property insurance All separate policies shall provide this waiver of subrogation by endorsement or otherwise. § A.11.4.3 Loss of Use Insurance. The Owner, at the Owner's option, may purchase and maintain such insurance as will insure the Owner against loss of use of the Owner's property due to fire or other hazards, however caused. The the Design Builder's etheF design Owner- waives all a ' Owner's professionals, if any, CantFaeter-s and Subeaat~-aeter-s fer- less of use of the seasequenfial losses Elue to fire or- other- hazards, hewevef • PAGE 28 interest, the n„ o fide y shall, of insured § A.11.4.9 if required •t b by YftJ lass, give bond for- pFeper- peFfefmanee of the Ownef's daties. The eest of required bonds sha4l be ehar-ged against pr-eeeeds r-eeeiN,ed as fidueiary. The Owner- shall depesit in a separate aeeaufft pr-eeeeds so r-eeeiN,ed, whieh thee Owner- shall dist~-ibute in aaear-danse with sueh agr-eemeBt as the par-ties in interest Enay r-eaeh. If afker- sueh less other- speeial agFeement is made and unless the Owner- ter-minates the Design Build CentFae! for- so r-eplarvefaeat ef damaged pr-epeFty shall be peFfefFned by the Design Builder- afteF netifieatien of a b § A.12.1.1 If a portion of the Work is covered contrary to the Owner's or a governmental or public authority's request, or to requirements specifically expressed in the Design-Build Documents, it must be uncovered for the Owner's examination and be replaced at the Design-Builder's expense without a • sole cost and expense without change to or addition to the Contract Time. § A.12.1.2 If a portion of the Work has been covered in which the Owner or a governmental or public authority has not specifically requested to examine prior to its being covered, the Owner or a governmental or public authority may request to see such Work and it shall be uncovered by the Design-Builder. If such Work is in accordance and/or compliance with the Design-Build Documents, the costs of uncovering and replacement shall, by appropriate Change Order, be at the Owner's expense. If such Work is not in accordance with the Pes Tn Build Documents, eeFFeetiefi and/or compliance with the Design-Build Documents correction, repair or replacement of the work shall be at the Design-Builder's expense unless the condition was caused by the r'wnef ^r- ^ separate een -aet^', in wh'^h event the Ownef shall h responsible for ^ nt of sueh easts.Owner. § A.12.2.1.1 The Design-Builder shall promptly eeFFeercorrect, repair or replace the Work rejected by the Owner or other governmental or public authority with such power and authority to request or demand such correction, repair or replacement of work, failing to conform to the requirements of the Design-Build Documents, whether discovered before or after Substantial Completion and whether or not fabricated, installed or completed. Costs of eaffeefing t a AleEk,.,,,a: ..additional testing, shall be at the Pesign Builder's correcting, repairing or replacing sueh such reiected or non-conforming Work, including additional testing and inspections, shall be at the Design-Builder's sole cost and expense. PAGE 29 § A.12.2.2.1 In addition to the Design-Builder's obligations under Section A.3.5, if, within one year after the date of Substantial Completion or after the date for commencement of warranties established under Section A.9.8.5 or by terms of an applicable special warranty required by the Design-Build Documents, any of the Work is found to be defective or not in accordance or compliance with the requirements of the Design-Build Documents, the Design- Builder shall eaFFest ect, repair or replace it promptly after receipt of written notice from the Owner to do so but Additions and Deletions Report for AIA Document A141 TM -2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 4 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. (1162032265) User Notes: ' apt,? r ry,,~ a. L Q~] f_.. _ not later than thirty (30) days thereof unless the Owner has previously given the Design-Builder a written awe reasonable time duFing that period after- r-eeeipt 9 specific acceptance of such condition. Correction, repair or replacement of defective or non-conforming-work shall begin within thirty (30) days of the receipt of written notice from the Owner and shall be completed within a reasonable time thereafter but not later than six (6) months thereof. If the Design-Builder fails to begin work to correct, repair or replace non-conforming Work within thirty (30) days after receipt of written notice from the Owner, the Owner may correct it in accordance with Section A.2.5. This obliliation under this section shall survive acceptance of the work under the Design-Builder Contract and termination of same. § A.12.2.2.3 Design BUildeF puFsuant to this Seetion A. 12.2. § A.12.2.3 The Design-Builder shall remove at its sole cost and expense from the site portions of the Work whieh that are not in accordance or compliance with the requirements of the Design-Build Documents and are neither nafFeeted corrected, repaired or replaced by the Design-Builder nor accepted by the Owner. § A.12.2.4 The Design-Builder shall bear the cost of eaFFee igcorrecting, repairing or replacing destroyed or damaged construction, whether completed or partially completed, of the Owner or separate contractors caused by the Design-Builder'seeFFeetion correction, repair or replacement or removal of Work which is not in accordance or compliance with the requirements of the Design-Build Documents. § A.12.2.5 Nothing contained in this Section A.12.2 shall be construed to establish a period of limitation with respect to other obligations the Design-Builder might have under the Design-Build Poeuments. Establishment of the ane . Documents but relates only to the specific obligation of the Design-Builder to eeFFestcorrect, repair or replace the Work, and has no relationship to the time within which the obligation to comply with the Design-Build Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Design-Builder's liability with respect to the Design-Builder's obligations other than specifically to safFeet the Weg correct, repair or replace the Work. 6 A.12.2.6 Any cost of repairs to any building not covered by insurance proceeds shall be paid by the Design-Builder. If the Owner must make any repairs, such costs will be deducted from the Contract Sum otherwise be due and payable to the Owner upon request. § A.12.3.1 If the Owner prefers to accept Work that is not in accordance or compliance with the requirements of the Design-Build Documents, the Owner may do so instead of requiring its removal a*d-and/or correction, in which case the Contract Sum will be equitably adjusted by Change GFder-.Order if appropriate as determined by the Owner. Such adjustment shall be effected whether or not final payment has been made-made to the Design-Builder § A.13.1.1 The validity and interpretation of the Design-Build Contract and the rights and obligations of the parties hereunder shall be governed by the law of the place where the Project is located. The Design-Build Contract is performable and enforceable in Brazos Countv. Texas where the DrinciDal office of the Owner is located and where the work shall be performed and the state courts of Brazos County shall be the sole and exclusive venue for any litigation, pecial proceedings or other proceeding as between the parties that may be brought or arise out of, in connection with or by reason of the Design-Build contract. PAGE 30 Additions and Deletions Report for AIA Document A141 Tm - 2004 Exhibit A. Copyright ® 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Jr Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No.10003 8556_1 which expires on 6/2/2009, and is not for resale. User Notes: 11 d,c (1162032265) §A.13.3.1 Alr-ittea rotiee Any notice to be !riven under the Design-Build Contract shall be deemed to have been 4u4y .0 toll"Va, WX ' - - . - -.a. 1- 11 1-....1 notice-given if reduced to writing and delivered by a nationally recognized personal delivery or courier service or mailed by certified or registered mail return receipt requested postage pre-paid to the party's representative at the addresses set forth herein or to such other address as either party may specify in writing, unless otherwise provided herein. Such notice shall be deemed to have been given five (5) days subsequent to the date it was so delivered or mailed. § A.13.3.2 The Design-Build Contractor may not assign its rights and duties under the Design-Build Contract without the prior written consent of the Owner and formal approval of the Commissioners Court, even if such assignment is due to a change in ownership or affiliation. Any assignment attempted without such prior consent and approval shall be null and void and the Design-Build Contractor shall nevertheless remain legally responsible for all obligations under the Design-Build Contract. Such consent and approval shall not relieve the Design-Build Contractor of liability in the event of a default by its assignee. § A.13.3.3 The Design-Build Contractor shall not assign any monies due or to become due hereunder without the prior written consent of the Owner and formal approval of the Commissioners Court, and of the Design-Build Contractor's surety. A copy of such consent of the surety, together with a copy of the assignment, shall be promptly submitted to the Owner for its records. In the event the Design-Build Contractor assigns its rights to all or any part of any monies due to or to become due under this Design-Build Contract, the instrument of assignment must contain a clause substantiallyto the effect that it is agreed by the parties that the right of assignees in and to any monies due or to become due to the Design-Build Contractor under the Design-Build Contract shall be subject to prior liens and claims of all persons firms and corporations (1) for services rendered; (2) for payment of all laborers and mechanics for labor performed; (3) for payment of all materials and equipment furnished and payment of all materials and equipment used or rented in the performance of the Work; and (4) for payment of any liens, claims, or amounts due to any government entity or any of their funds. Any and all payments to an assignee shall constitute full satisfaction and accord to the Design-Build Contractor of any and all obligations for which said sums are paid. The Owner shall be released from any and all obligation to pay the Design-Build Contractor such payments, until the Owner receives formal written notice of a change from the Design-Build Contractor, and the Design-Build Contractor agrees to indemnify and hold the Owner harmless from and against any and all claims and liabilities arising from the assignment including but not limited to payments of any and all monies under the Design-Build Contract to the Design-Build Contractor. § A.13.4.2 No action or failure to act by the Owner or Design-Builder shall constitute a waiver of a right or duty afforded them under the Design-Build Documents, nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed in ~,witiag.writing by the parties. 4 A.13.4.3 Except as provided for in Section A.9.11, pursuit of any remedy provided in the Design-Build Contract shall not preclude pursuit of any other remedies herein provided or any other remedies provided by law or equity, including injunctive relief, nor shall pursuit of any remedy herein provided constitute a forfeiture or waiver of any obligation of the defaulting party hereunder or of any damages accruing by reason of the violation of any of the terms provisions and covenants herein contained. No waiver of any term, covenant, condition, or violation of the Design-Build Contract shall be deemed or construed to constitute a waiver of any other violation or breach of any of the terms provisions and covenants herein contained and forbearance to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default. Any waiver of any provision of the Design-Build Contract or violation thereof must be by a written instrument executed by the parties. PAGE 31 § A.13.5.1 Tests, inspections and approvals of portions of the Work required by the Design-Build Documents or by laws, codes, ordinances, rules, regulations or orders of public authorities having jurisdiction over such matters shall be made at an appropriate time. Unless otherwise provided, the Design-Builder shall make arrangements for such tests, inspections and approvals with an independent testing laboratory or entity acceptable to the Owner or with the Additions and Deletions Report for AIA Document A141TM - 2004 Exhibit A. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 6 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: , t { b (1162032265) appropriate governmental or public authority, and shall bear all related costs of tests, inspections and approvals. The Design-Builder shall give timely written notice of when and where tests and inspections are to be made so that the Owner may be present for such procedures. § A.13.5.2 If the Owner or governmental or public authorities or a encyhaving jurisdiction determine that portions of the Work require additional testing, inspection or approval not included under Section A.13.5.1, the Owner shall in writing instruct the Design-Builder to make arrangements for such additional testing, inspection or approval by an entity acceptable to the Owner, and the Design-Builder shall give timely written notice to the Owner of when and where tests and inspections are to be made so that the Owner may be present for such procedures. Such costs, except as provided in Section A.13.5.3, shall be at the Owner's expense-.expense unless otherwise provided for herein. § A.13.5.3 If such procedures for testing, inspection or approval under Sections A.13.5.1 and A.13.5.2 reveal failure of the portions of the Work to comply with requirements established by the Design-Build Documents, all costs made necessary by such failure, including those of repeated pr-aeedufes~,-tbe cost of those of repeated procedures for testing, inspections and ap rop vals, shall be at the Design-Builder's expense. § A.13.5.4 Required certificates of testing, inspection or approval shall, unless otherwise required by the Design- Build Documents, be secured and maintained by the Design-Builder and promptly delivered to the Owner. § A.13.5.5 If the Owner is to observe tests, inspections or approvals required by the Design-Build Documents, the Owner will do so promptly and, where practicable, at the normal or usual place of testing. § A.13.5.6 Tests or inspections conducted pursuant to the Design-Build Documents shall unless expressly provided otherwise be made promptly to avoid unreasonable delay in the Work. § A.13.6 COMMENCEMENT- OF STATUTORY 1 1h.MITATION PERIODEQUAL OPPORTUNITY § A.13.6.1 As between the Owner- and Pesign 12.,:1der-: Substantial Completion, any appheable statute of limitations shall t and alleged eaffffaenee any eause of aetien shall be deemed tO haV@ aeffued in any and all events not later- than sueh date a Substantial Gempletion; .2 Betiwe.pa Substantial Completion and Final ApplkatiOH fOF Payment. As to a6ts E)r- failuFes to ae aeeua4fig subsequen! to the r-elevant date of Substantial Completion and pr-ieF to issuanee of the final AYY r~phe tion f r- Payment+ any ^YY ..1:,.able tame of li fr t^tions shall and alleged J cause of aefien shall be deemed to have aGeFtled in any and all events not later- than the date of issuanee of the fiaa4 Appheation for- Payment; and Afteff Final AppNeation for- Payment. As to aets or- failuFes te ae! 99euFFiag afteF the Felevant date a Payment, issuance ef the final Applioation for- alleged eause of aetion shall be deemed to have aeeFtied in any and all events not later- than the date of any aet OF failure to et by the Design Builder-nt to any X a "t. pr-evidediander Seetion A.3.5, the date of an seFFeetien of the 3A'eFk 9F failure to eeffeet the WeEk by the Design BUildeF undei: Seetion A. 12.2, of the date ef aetual eafmPAssien of affy other- aet or- failuFe to per-feFm any Eluty or- obligation by the Design Builder- eF e .••hieheve- ee lest The Design-Build Contractor shall maintain policies of employment as follows: § A.13.6.1.1 The Design-Build Contractor and its Contractors and Subcontractors shall not discriminate against any employees or applicants for emplovment because of race religion color, sex or national origin The Design-Build Contractor shall take affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard to their race religion color, sex or national origin Such action shall include but not be limited to the following: (1) employment upgrading, demotion or transfer; (2) recruitment or recruitment advertising; (3) layoff or termination; (4) rates of pay or other forms of compensation; and (5) selection for training, including apprenticeship. The Design-Build Contractor agrees to post or station in conspicuous places available to employees and applicants for employment notices setting forth the policies of nondiscrimination Additions and Deletions Report for AIA Document A141 Tm - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 7 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No. 10003585561 which expires on 6/2/2009, and is not for resale. User Notes: I ( 1 300 (1162032265) $ A 13 61 2 The Design-Build Contractor and its Contractors and Subcontractors shall, in all solicitations or advertisements for employment placed by them or on their behalf, state that all qualified applicants will receive consideration for employment without regard to race religion, color, sex, or national origin. § A.13.7 FISCAL FUNDING CLAUSE $ A.13.7.1 Notwithstanding any provisions contained herein the obligations of the Owner under the Design-Build Contract are expressly contingent upon the availability of funding for each item and obligation contained herein for the term of the Design-Build Contract and any extensions thereto. The Design-Build Contractor, any Contractor, any Subcontractor, any Sub-subcontractor, or any other person or entity directly or indirectly employed by the Design-Build Contractor or yerforming Work or supplying materials or equipment on the Design-Build Contractor's behalf, or any other person or entity to whom the Design-Build Contractor may be liable to, shall have no right of action against the Owner in the event the Owner is unable to fulfill its obligations under this Design-Build Contract as a result of lack of sufficient funding for any item or obligation from any source utilized to fund the Design-Build Contract or failure to budget or authorize funding for the Design-Build Contract during the current or future fiscal years In the event that the Owner is unable to fulfill its obligations under the Design-Build Contract as a result of lack of sufficient funding or if funds become unavailable the Owner may, in its sole discretion, provide funds from a separate source or may, in its sole discretion terminate this Design-Build Contract by written notice to the Design- Build Contractor at the earliest possible time under the circumstances. § A.13.8 SEVERABILTTY § A.13.8.1 If any provision of the Design-Build Contract is construed or held to be illegal, invalid, void, voidable, or unenforceable this will not affect the legality, validity, or enforceability of any of the remaining provisions in the Design-Build Contract The illegal invalid or unenforceable provision will be deemed stricken and deleted, but all other provisions shall continue in full force and effect as if the illegal invalid or unenforceable provisions had never been incorporated. § A.13.9 SOVEREIGN IMMUNITY $ A.13.9.1 Except as provided for in Tex Loc Gov't Code $ 262.007 the Design-Build Contract shall be expressly made subject to the Owner's Sovereign Immunity from suit pursuant to Title 5 of the Texas Civil Practices and Remedies Code and all applicable federal and State of Texas laws. The parties expressly agree that no provision of the Design-Build Contract is in any way intended to constitute a waiver of any immunities from suit or from liability that the Owner has by operation of law. $ A.13.10 AMENDMENTS AND CHANGES IN THE LAW § A.13.10.1 No modification amendment innovation renewal or other alteration of the Design-Build Documents shall be effective unless mutually agreed upon in writing and executed by the parties hereto. Any alteration, addition or deletion to the terms of the Design-Build Documents that are required by changes in federal or state law are automatically incorporated herein without written amendment to the Design-Build Contract and shall be effective on the date designated by said law. If a change in federal or state law causes in increase or decrease in the Contract Sum and/or Contract Time the Owner shall issue a change order as agreed to by the parties in accordance with Section A.1.2.2. $ A.13.11 COUNTERPARTS NUMBER/GENDER AND HEADINGS § A.1 3.1 i1 This Design-Build Contract may be executed in multiple counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. Words of any gender used in the Design- Build Contract shall be held and construed to include any other gender. Any words in the singular shall include the plural and vice versa unless the context clearly requires otherwise. Headings herein are for the convenience of reference only and shall not be considered in any interpretation of the Design-Build Contract. $ A.13.12 INDEPENDENT CONTRACTOR § A.1 3.121 The Design-Build Contractor, including its employees agents, representatives, licensees, or any other person or entity -directly or indirectly performing Work under the Design-Build Contract or supplying materials or equipment under the Design-Build Contract on the Design-Build Contractor's behalf, is an independent contractor and not an agent servant joint enterprise or employee of the Owner, and is responsible for its own acts, omissions, forbearance negligence and deeds and for those of its employees, agents, and representatives in conjunction with the performance of services under the Design-Build Contract and shall be specifically responsible for sufficient supervision and infection to ensure compliance in every respect with the requirements of the Design-Build Additions and Deletions Report for AIA Document A141 TM -2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIAe 8 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/212009, and is not for resale. User Notes: H] ] 301(1162032265) Documents. There shall be no contractual relationship between any Contractor, Subcontractor, Sub-subcontractor, agent, employee, or supplier of the Design-Build Contractor and the Owner by virtue of the Design-Build Contract. This Section A.13.12.1 shall not be for the benefit of any other party other than the Owner and the Design-Build Contractor. § A.13.13 CONTRACTING § A.13.13.1 The Design-Build Contractor may enter into agreements with Contractors for the delivery of goods or services or for the performance of portions of the Work as provided for herein, subject to the limitations herein. The costs of all contracted services are included in the amounts payable to the Design-Build Contractor herein. Contracts, if any, entered into by the Design-Build Contractor shall be in writing and subject to all requirements herein. The Design-Build Contractor agrees that it will be solely responsible to the Owner for the performance of the Design-Build Contract, unless otherwise specifically provided herein. The Design-Build Contractor shall pay all Contractors in a timely manner. The Owner shall have the right to prohibit the Design-Build Contractor from using any Contractor, subject to the limitations contained in the Design-Build Documents. § A.13.14 PROMPT PAYMENT ACT § A.13.14.1 The Design-Build Contractor agrees that a temporary delay in making payments due to the Owner's accounting and disbursement procedures shall not place the Owner in default of the Design-Build Contract and shall not render the Owner liable for interest or penalties, provided such delay shall not exceed thirty (30) days after its due date. Any payment not made within thirty (30) days of its due date shall bear interest in accordance with Chapter 2251 of the Texas Government Code. § A.13.15 COMPLIANCE WITH LAWS § A.13.15.1 In providing Work and/or services required by the Design-Build Contract, the Design-Build Contractor must observe and comps with all applicable federal, state, and local statutes, codes, ordinances, rules, and regulations. The Design-Build Contractor shall be responsible for ensuring its compliance with any laws and regulations applicable to its business, including maintaining any necessary licenses and permits. § A.13.16 THIRD PARTIES § A.13.16.1 The obligations of each party to the Design-Build Contract shall inure solely to the benefit of the other party, and no other person or entity shall be a third party beneficiary of the Design-Build Contract or have any right to enforce any obligation created or established under the Design-Build Contract. PAGE 33 § A.14.1.1 The Design-Builder may terminate the Design-Build Contract if the Work is stopped for a period of -30 thirty (30) consecutive days through no act or fault of the Design-Builder or a Contractor, SxbeeatFaetaf Subcontractor, Suppliers or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Design-Builder, for any of the following reasons: .1 issuance of an order of a court or other governmental or public authority or agency having jurisdiction which requires all Work to be stopped; § A.14.1.2 The Design-Builder may terminate the Design-Build Contract if, through no act or fault of the Design- Builder or a Contractor, Saboi-Subcontractor, Supplier or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Design-Builder, repeated suspensions, delays or interruptions of the entire Work by the Owner, as described in Section A.14.3, constitute in the aggregate more than 400-one -hundred (100%) percent of the total number of days scheduled for completion, or 42$-six 60 days in any 365-day period, whichever is less. § A.14.1.3 If one prior of the reasons described in Sections A.14.1.1 or A. 14.1.2 exists, the Design-Builder may, upon seven days' written notice to the Owner, terminate the Design-Build Contract and recover from the Owner payment for Work executed and for proven loss with respect to materials, equipment, tools, and construction equipment and machinery, including reasonable overhead, profit and damages.and damages which shall be limited to that portion of the Work already completed on the project. The Design-Builder shall submit to the Owner for review a detailed pay request with sufficient documentation reflecting work performed, goods and/or services Additions and Deletions Report for AIA Document A141 Tm - 2004 Exhibit A. Copyright @ 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 9 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No. 1000358556_1 which expires on 6/2/2009, and is not for resale. 30 a (1162032265) User Notes: 4 provided and any and all loses or damages sustained The Owner will review the pay request to determine if such costs are reasonable If Owner accepts and agrees to pay, in whole or in part the costs provided therein the Owner will make payment to the Design-Builder in accordance with the Design-Build Documents, subject to approval by the Commissioners Court. If the oay request is not resolved to the satisfaction of the Design-Builder then the Design-Builder may submit a claim pursuant to Article A.4. § A.14.1.4 If the Work is stopped for a period of 68-sixt 60 consecutive days through no act or fault of the Design- Builder or a G&^ -Contractor Subcontractor or Supplier or their agents or employees or any other persons performing portions of the Work under a direct or indirect contract with the Design-Builder because the Owner has persistently failed to fulfill the Owner's obligations under the Design-Build Documents with respect to matters important to the progress of the Work, the Design-Builder may, upon seven additional ' (7)additional days' prior written notice to the Owner, terminate the Design-Build Contract and recover from the Owner as provided in Section A.14.1.3. PAGE 34 .1 persistently or repeatedly refuses or fails to supply enough properly skilled workers or proper mat ials;materials or supplies; .2 fails to make payment to Contractors or Suppliers for services, -^s-materials, supplies or labor in accordance with the respective agreements between the Design-Builder and the Architect and Contractors; .3 persistently disregards laws, codes, ordinances or rules, regulations or orders of a public or governmental authority or agencLhaving jurisdiction; or .4 otherwise is guilty of a substantial or material breach of a provision of the Design-Build Documents. § A.14.2.2 When any of the above reasons exist, the Owner may in the sole discretion and without prejudice to any other rights or remedies of the Owner and after giving the Design-Builder and the Design-Builder's surety, if any, seven g1days' prior written notice, terminate employment of the Design-Builder and may, in the sole discretion subject to any prior rights of the surety: .2 accept assignment of eensaetscontracts subcontracts leases or other agreements necessary to compete the work including those pursuant to Section A.5.5.1; and .3 €mislrcompete the Work by whatever reasonable means or method the Owner may deem expedient. Upon request of the Design-Builder, the Owner shall furnish to the Design-Builder a detailed accounting of the costs incurred by the Owner in `i^ihi ig-completing the Work. § A.14.2.3 When the Owner terminates the Design-Build Contract for one (1) of the reasons stated above in Section A.14.2.1, the Design-Builder shall not be entitled to receive further payment until the Work its completed and fully Rerformed In the event that the Design-Build contract is terminated for cause, and such cause is found not to exist, the termination by the Owner will automatically convert to a termination by the Owner for convenience. § A.14.2.4 If the unpaid balance of the Contract Sum exceeds costs of f ^i b completing the Work and other damages incurred by the Owner- and not exp essl y '°4,-Owner, , such excess shall be paid to the Design-Builder. If such costs and damages exceed the unpaid balance, the Design-Builder shall pay the difference to the Owner upon request by the Owner. This obligation will survive termination of the Desigsn-Build contract. § A.14.3.1 The Owner may, without cause, order the Design-Builder in writing to suspend, delay or interrupt the Work in whole or in part for such period of time as the Owner may determine determine or deem necessary or appropriate. § A.14.3.2 The Contract Sum and Contract Time shall be adjusted for increases in the cost and time caused by suspension, delay or interruption as described in Section A.14.3.1. Adjust adjustment of the Contract Sum Additions and Deletions Report for AIA Document A141 Tm - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 10 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No.1000356556_1 which expires on 6/2/2009, and is not for resale. User Notes: ' I I °3 03 (1162032265) shall include ef~t-reasonable profit after review and approval of such by the Owner. No adjustment shall be made to the extent: PAGE 35 cease operations and performance of the Design-Build contract as directed by the Owner in the notice; except for Work directed to be performed prior to the effective date of termination stated in the notice, terminate all existing contracts and purchase orders and enter into no further contracts and purchase orders. rders unless specifically directed otherwise in the notice. § A.14.4.3 In the event of termination for the Owner's convenience prior to commencement of construction, the Design-Builder shall be entitled to receive payment for design services performed, costs incurred by reason of such termination and reasonable overhead and profit on design services not completed. In case of termination for the Owner's convenience after commencement of construction, the Design-Builder shall be entitled to receive payment far- 3ATA-Fic eiceeated and eests ineuffed by Feasen of sueh teFffiiaafian, alang with reasonable ever-head and profit an the WeEk aet e a ,..oa from the Owner on the same basis as provided in Section A.14.1.3. 4 A.14.5 TRANSITION SERVICES REQUIRED OF DESIGN-BUILD CONTRACTOR 4 A.14.5.1 Upon notice of termination, suspension, cancellation, or expiration of the Design-Build Contract, the Owner shall immediately have the right to audit any and all records of the Design-Build Contractor relating to the Design-Build Contract. Moreover, upon the termination, suspension, cancellation, or expiration of the Design-Build _Contract, the Design-Build Contractor agrees to transition the Work and/or services provided under the Design- Build Contract in a cooperative manner and provide anything requested from the Owner at no additional cost, including, but not limited to, the following: (I) All Work and services documentation, including all records, books, and data reasonably related to the Design-Build Contract, maintained in accordance with general accounting procedures and identified in a complete, neat, and orderly manner; (ii) A good faith pledge to cooperate with the Owner upon transition of the Work and/or services to another Design-Build Contractor or a contractor or the Owner or separate contractors of the Owner; (iii) Records, books, and data, including electronic data, in a format compatible with the Owner's information technology capabilities, or in a format compatible with a succeeding Design-Build Contractor's or contractor's or separate contractor's information technology capabilities, as determined by the Owner; (iv) Final accounting of all income derived from the Design-Build Contract; (v) Downloading and removal of all the Owner's information from the Design-Build Contractor's equipment and software; and NO Removal of the Design-Build Contractor's services without degradation or other adverse affect on the Work. This Section A. 14.5.1 shall survive termination, suspension, cancellation, or expiration of the Design- Build Contract. ARTICLE A.15 ASSURANCES OF THE DESIGN-BUILD CONTRACTOR 4 A.15.1 In providing the Work and/or services required by this Design-Build Contract, the Design-Build Contractor agrees to observe and comply with all requirements, licenses, legal certifications, or inspections required for the Work, services, facilities, equipment, materials, or supplies and all applicable federal, state, and local laws, statutes, codes, ordinances, rules, regulations, and orders. The Design-Build Contractor's failure to comply with this Section A.15.1 shall be treated as a default and/or breach of the Design-Build Contract. § A.15.2 The Design-Build Contractor assures that it will not transfer or assign its interest in the Design-Build Contract without the prior written consent of the Owner and formal approval of the Commissioners Court. The Design-Build Contractor understands that in the event that all or substantially all of the Design-Build Contractor's assets are acquired by another entity, the Design-Build Contractor is still obligated to fulfill the terms and conditions of the Design-Build Contract. § A,15.3 The Design-Build Contractor, by acceptance of the terms of the Design-Build Contract, agrees and ensures that employees or agents providing Work and/or services under the Design-Build Contractare duly licensed and/or qualified to perform the required Work and/or services. The Design-Build Contractor further agrees and ensures that all licenses or permits necessary to perform the required Work and/or services are current and that the Owner Additions and Deletions Report for AIA Document A141 TM - 2004 Exhibit A. Copyright ® 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 11 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No.10003V556_1 which expires on 6/2/2009, and is not for resale. User Notes: (/j, (1162032265) will be notified immediately if such licenses or permits become invalid during performance of the Design-Build Contract. § A.15.4 The Design-Build Contractor assures that no person will, on the grounds of race, creed, color, handicap, disability, national origin, sex, political affiliation, or beliefs, be excluded from, be denied the benefit of, or be subjected to discrimination under any activity funded in whole or part under this Design-Build Contract. The Design-Build Contractor agrees to comply, if applicable, with all federal and state statutes relating to nondiscrimination, including, but not limited to: Title VI of the Civil Rights Act of 1964 (P.L. 88-352), which prohibits discrimination on the basis of race, color, or national origin; Title IX of the Education Amendments of 1972, as amended (20 U.S.C. SS 1681-1683, and 1685-1686), which prohibits discrimination on the basis of sex; Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C.S 794), which prohibits discrimination on the basis of handicaps; the Americans with Disabilities Act of 1990 (P.L. 101-336), which prohibits discrimination on the basis of disabilities; the Age Discrimination Act of 1975, as amended (42 U.S.C. SS 6101-6107), which prohibits discrimination on the basis of age; the Drug Abuse Office and Treatment Act of 1972 (P.L. 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (P.L. 91-616), as amended, relating to nondiscrimination on the basis of alcohol and drug abuse patient records; and the requirements of any other nondiscrimination statute(s) which may apply. § A.15.5 The Design-Build Contractor agrees to adhere to confidentiality requirements, as applicable, for the Work and/or services performed for the Owner under the Design-Build Documents, and any other confidentiality provisions or laws, whether federal or state, relating to the Work and/or services being providing hereunder. § A.15.6 The Design-Build Contractor assures that it will not use any information, documents, or data provided to the Design-Build Contractor by the Owner for any proprietary purposes and shall not copy, sell, exchange, disclose, or otherwise provide to others or use any information, documents, or data reasonably related to this Design-Build Contract for its own proprietary interests. § A.15.7 The Design-Build Contractor shall comply with all federal, state, and local laws, statutes, ordinances, rules, and regulations in effect as of the effective date of the Design-Build Contract, and orders and decrees of any courts or administrative bodies or tribunals in any matter affecting the performance of the Design-Build Contract, including, without limitation, workers' compensation laws, minimum and maximum salary and wage statutes and regulations, licensing laws and regulations, and non-discrimination laws and regulations. When required, the Design-Build Contractor shall furnish to the Owner satisfactory proof of compliance therewith. § A.15.8 The Design-Build Contractor shall have a drug and alcohol free work place policy. The Design-Build Contractor shall also require that all contracts between itself and Contractors performing Work and/or services under the Design-Build Contract also comply with said requirements. § A.15.9 Pursuant to Article 2.45 of the Business Corporation Act, Texas Civil Statutes, which prohibits the Owner from entering into a contract with a corporation that is delinquent in paving taxes under Chapter 171 of the Texas Tax Code, the Design-Build Contractor, by executing this Design-Build Contract, hereby certifies that it is not delinquent in its Texas franchise tax payments, or that it is exempt from, or not subject to such a tax. A false statement concerning the Design-Build Contractor's franchise tax status shall constitute a default or breach of this Design-Build Contract and the Owner may terminate the Design-Build Contract for cause at the sole option of the Owner. §A.15.10 The Design-Build Contractor certifies that neither it nor any of its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in the Design- Build Contract by any federal or state department or agency. §A.15.11 The Design-Build Contractor shall pay all Contractors and suppliers in a timely manner. The Owner shall have no liability to any Contractors, Subcontractors, Sub-subcontractors, or suppliers in the event the Design-Build Contractor does not pay or delays payment to any Contractors. At termination or expiration of the Design-Build Contract, the Design-Build Contractor shall deliver to the Owner an affidavit of all bills paid. Final payment may, in the sole discretion of the Owner, be contingent upon receipt of such affidavits as resolution of all accounting for which the Owner is or may be liable under the Design-Build Contract. Additions and Deletions Reportfor AIA Document A141 Tm - 2004 Exhibit A. Copyright m 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 12 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: 9 11 (1162032265) § A.15.12 Failure of the Design-Build Contractor to comply with any of these assurances or any other requirements specified within the Design-Build Document will put the Design-Build Contractor in default and/or breach of the Design-Build Contract and may result at the sole discretion of the Owner, in the withholding of payments and the withholding of future awards in addition to any other remedies permitted by law. 6 A.16 ACCEPTANCES AND SIGNATORY WARRANTY § A.16.1 The duly authorized representatives of the Design-Build Contractor and the Owner accept the terms of the Design-Build Contract in full. § A 16 2 The person or persons signing and executing the Design-Build Contract on behalf of the Design-Build Contractor, or representing themselves as signing and executing the Design-Build Contract on behalf of the Design- Build Contractor, do hereby warrant and guarantee that he she or they have been duly authorized by the Design- Build Contractor to execute the Design-Build Contract on behalf of the Design-Build Contractor and to validly and legally bind the Design-Build Contractor to all terms conditions and provisions of the Design-Build Documents. The Design-Build Contractor shall furnish to the Owner a corporate resolution authorizing signatory authority. Additions and Deletions Report for AIA Document A141 TM - 2004 Exhibit A. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® 13 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:29:51 on 08/18/2008 under Order No.10003_§.8556 1 which expires on 6/2/2009, and is not for resale. User Notes: ¢ I~~p (1162032265) =:®==AIA Document PL 14l'"- 2004 Exhibit B Determination of the Cost of the Work for the following PROJECT: (N¢me ¢nd loc¢fzon or address) Arena Hall Votin Services - Brazos County AO DITTO NS AND DELETIONS: g The author of this document has added information needed for its com pl etion_ The author may also THE OWNER: have revised the text of the original (Name and ¢ddress) AIA standard form- An Additions and Oe/etions Reportthat notes added Brazos County information as wall as revisions to 300 East 26vh Street the standard form text is available Bryan, Texas 77803 from the author and should Be reviewed- A vertical line in the left THE DESIGN-BUILDER: margin of this document indicates (N¢sne and ¢ddress) -hare the author has added necessary infomt -ti- and where I Greenway Constructors, I— - Patterson Architects the author has added to or deleted P. C). BOX 11184 from the original AIA to M. College Station, Texas 77842 This document has important legal consequences. Consultation with an att orney is encouraged with respect to its completion or modification. Consultation with an attorney is also encouraged with respect to professional licensing requirements in the, jurisdiction where the Project is located- Irtit AIA -umant At 411- - 2004 Etrhibit 6. Copyright ®2004 by Th. American Institute of Architects- All rights reserve®. WARNING= This AIA® Oocumeni is protected by U.S. Copyright Law and International Treafias. Unaut-ri-a reproduction or distdbutlon of this AIA ~ocumant, or any portion of it, 1 T result in severe civil and criminal penalties, and will ba prosecuted fo iha maximum extent possible under the iaw_ This document was produced by / AIA software of 13:31 c30 on 08/18/2008 under Ortler No.t 000368686 1 which a.piras oggq 6/2/2009, and is noS for resale. user Notes: (1866803t98j ARTICLE B.1 CONTROL ESTIMATE § B.1.1 Where the Contract Sum is the Cost of the Work, plus the Design-Builder's Fee without a Guaranteed Maximum Price pursuant to Section 4.3 of the Agreement, the Design-Builder shall prepare and submit to the Owner prior to the Design-Builder's first Application for Payment, in writing, a Control Estimate. The Control Estimate shall include the estimated Cost of the Work plus the Design-Builder's Fee. The Control Estimate shall be used to monitor actual costs. § B.1.2 The Control Estimate shall include: .1 the documents enumerated in Article 8 of the Agreement, including all Addenda thereto and the Terms and Conditions of the Contract; .2 a statement of the estimated Cost of the Work showing separately the compensation for design services, construction costs organized by trade categories or systems and the Design-Builder's Fee; and .3 contingencies for further development of design and construction. § B.1.3 The Design-Builder shall meet with the Owner to review the Control Estimate. In the event that the Owner discovers any inconsistencies or inaccuracies in the information presented, it shall promptly notify the Design- Builder, who shall make appropriate adjustments to the Control Estimate. When the Control Estimate is acceptable to the Owner, the Owner shall acknowledge its acceptance in writing. The Owner's acceptance of the Control Estimate does not imply that the Control Estimate constitutes a Guaranteed Maximum Price. § B.1.4 The Design-Builder shall develop and implement a detailed system of cost control that will provide the Owner with timely information as to the anticipated total Cost of the Work. The cost control system shall compare the Control Estimate with the actual cost for activities in progress and estimates for uncompleted tasks and proposed changes. This information shall be reported to the Owner, in writing, no later than the Design-Builder's first Application for Payment and shall be revised monthly or at other intervals as mutually agreed. ARTICLE B.2 COSTS TO BE REIMBURSED § B.2.1 COST OF THE WORK The term Cost of the Work shall mean costs necessarily incurred by the Design-Builder in the proper performance of the Work. Such costs shall be at rates not higher than the standard paid at the place of the Project except with prior consent of the Owner. The Cost of the Work shall include only the items set forth in this Article B.2. § B.2.2 LABOR COSTS § 8.2.2.1 Wages of construction workers directly employed by the Design-Builder to perform the construction of the Work at the site or, with the Owner's approval, at off-site locations. § 8.2.2.2 Wages or salaries of the Design-Builder's supervisory and administrative personnel when stationed at the site with the Owner's approval. § 8.2.2.3 Wages and salaries of the Design-Builder's supervisory or administrative personnel engaged at factories, workshops or on the road, in expediting the production or transportation of materials or equipment required for the Work, but only for that portion of their time required for the Work. § B.2.2.4 Costs paid or incurred by the Design-Builder for taxes, insurance, contributions, assessments and benefits required by law or collective bargaining agreements and, for personnel not covered by such agreements, customary benefits such as sick leave, medical and health benefits, holidays, vacations and pensions, provided such costs are based on wages and salaries included in the Cost of the Work under Sections B.2.2.1 through B.2.2.3. § B.2.3 CONTRACT COSTS § 8.2.3.1 Payments made by the Design-Builder to Contractors in accordance with the requirements of their contracts. § B.2.4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED CONSTRUCTION § B.2.4.1 Costs, including transportation and storage, of materials and equipment incorporated or to be incorporated in the completed construction. AIA Document A141 Tm - 2004 Exhibit B. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 2 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:31:30 on 08/18/2008 under Order No.1000358556_1 wfh i expKes pn 6/2/ 09, and is not for resale. User Notes: l_., (1855803198) § 13.2.4.2 Costs of materials described in the preceding Section B.2.4.1 in excess of those actually installed to allow for reasonable waste and spoilage. Unused excess materials, if any, shall become the Owner's property at the completion of the Work or, at the Owner's option, shall be sold by the Design-Builder. Any amounts realized from such sales shall be credited to the Owner as a deduction from the Cost of the Work. § B.2.5 COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND RELATED ITEMS § 13.2.5.1 Costs, including transportation and storage, installation, maintenance, dismantling and removal of materials, supplies, temporary facilities, machinery, equipment, and hand tools not customarily owned by construction workers, that are provided by the Design-Builder at the site and fully consumed in the performance of the Work; and cost (less salvage value) of such items if not fully consumed, whether sold to others or retained by the Design-Builder. The basis for the cost of items previously used by the Design-Builder shall mean the fair market value. § 13.2.5.2 Rental charges for temporary facilities, machinery, equipment, and hand tools not customarily owned by construction workers that are provided by the Design-Builder at the site, whether rented from the Design-Builder or others, and costs of transportation, installation, minor repairs and replacements, dismantling and removal thereof. Rates and quantities of equipment rented shall be subject to the Owner's prior approval. § 13.2.5.3 Costs of removal of debris from the site. § 6.2.5.4 Cost of document reproductions, facsimile transmissions and long-distance telephone calls, postage and parcel delivery charges, telephone service at the site and reasonable petty cash expenses of the site office. § B.2.5.5 That portion of the reasonable expenses of the Design-Builder's personnel incurred while traveling in discharge of duties connected with the Work. § 13.2.5.6 Costs of materials and equipment suitably stored off the site at a mutually acceptable location, if approved in advance by the Owner. § 13.2.6 DESIGN AND OTHER CONSULTING SERVICES § 6.2.6.1 Compensation, including fees and reimbursable expenses, paid by the Design-Builder for design and other consulting services required by the Design-Build Documents . § 13.2.7 MISCELLANEOUS COSTS § 13.2.7.1 That portion of insurance and bond premiums that can be directly attributed to this Design-Build Contract. § 13.2.7.2 Sales, use or similar taxes imposed by a governmental authority that are related to the Work. § 8.2.7.3 Fees and assessments for the building permit and for other permits, licenses and inspections for which the Design-Builder is required by the Design-Build Documents to pay. § 13.2.7.4 Fees of laboratories for tests required by the Design-Build Documents, except those related to defective or non-conforming Work for which reimbursement is excluded by Section A.13.5.3 of Exhibit A, Terms and Conditions, or other provisions of the Design-Build Documents, and which do not fall within the scope of Section A.13.5.3. § 13.2.7.5 Royalties and license fees paid for the use of a particular design, process or product required by the Design- Build Documents; the cost of defending suits or claims for infringement of patent rights arising from such requirement of the Design-Build Documents; and payments made in accordance with legal judgments against the Design-Builder resulting from such suits or claims and payments of settlements made with the Owner's consent. However, such costs of legal defenses, judgments and settlements shall not be included in the calculation of the Design-Builder's Fee or subject to the Guaranteed Maximum Price. If such royalties, fees and costs are excluded by the last sentence of Section A.3.16.1 of Exhibit A, Terms and Conditions, or other provisions of the Design-Build Documents, then they shall not be included in the Cost of the Work. § 6.2.7.6 Data processing costs related to the Work. AIA Document All 41 TM - 2004 Exhibit B. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA' Document is Inlt protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 3 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:31:30 on 08/18/2008 under Order Nc.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: UA (1855803198) § B.2.7.7 Deposits lost for causes other than the Design-Builder's negligence or failure to fulfill a specific responsibility to the Owner as set forth in the Design-Build Documents. § B.2.7.8 Legal, mediation and arbitration costs, including attorneys' fees, other than those arising from disputes between the Owner and Design-Builder, reasonably incurred by the Design-Builder in the performance of the Work and with the Owner's prior written approval, which approval shall not be unreasonably withheld. § 8.2.7.9 Expenses incurred in accordance with the Design-Builder's standard personnel policy for relocation and temporary living allowances of personnel required for the Work, if approved by the Owner. § B.2.8 OTHER COSTS AND EMERGENCIES § B.2.8.1 Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the Owner. § B.2.8.2 Costs due to emergencies incurred in taking action to prevent threatened damage, injury or loss in case of an emergency affecting the safety of persons and property, as provided in Section A.10.6 of Exhibit A, Terms and Conditions. § B.2.8.3 Cost of repairing or correcting damaged or non-conforming Work executed by the Design-Builder, Contractors, Subcontractors or suppliers, provided that such damaged or non-conforming Work was not caused by negligence or failure to fulfill a specific responsibility of the Design-Builder and only to the extent that the cost of repair or correction is not recoverable by the Design-Builder from insurance, sureties, Contractors, Subcontractors or suppliers. ARTICLE B.3 COSTS NOT TO BE REIMBURSED § B.3.1 The Cost of the Work shall not include: § B.3.1.1 Salaries and other compensation of the Design-Builder's personnel stationed at the Design-Builder's principal office or offices other than the site office, except as specifically provided in Sections B.2.2.2 and B.2.2.3. § B.3.1.2 Expenses of the Design-Builder's principal office and offices other than the site office. § 8.3.1.3 Overhead and general expenses, except as may be expressly included in Article B.2 of this Exhibit. § 8.3.1.4 The Design-Builder's capital expenses, including interest on the Design-Builder's capital employed for the Work. § 8.3.1.5 Rental costs of machinery and equipment, except as specifically provided in Section B.2.5.2. § B.3.1.6 Except as provided in Section B.2.8.3 of this Agreement, costs due to the negligence or failure of the Design-Builder to fulfill a specific responsibility of the Design-Builder, Contractors, Subcontractors and suppliers or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable. § B.3.1.7 Any cost not specifically and expressly described in Article B.2, Costs to be Reimbursed. § B.3.1.8 Costs, other than costs included in Change Orders approved by the Owner, that would cause the Guaranteed Maximum Price, if any, to be exceeded. ARTICLE B.4 DISCOUNTS, REBATES AND REFUNDS § B.4.1 Cash discounts obtained on payments made by the Design-Builder shall accrue to the Owner if (1) before making the payment, the Design-Builder included them in an Application for Payment and received payment from the Owner, or (2) the Owner has deposited funds with the Design-Builder with which to make payments; otherwise, cash discounts shall accrue to the Design-Builder. Trade discounts, rebates, refunds and amounts received from sales of surplus materials and equipment shall accrue to the Owner, and the Design-Builder shall make provisions so that they can be secured. Init. AIA Document A141 TM -2004 Exhibit B. Copyright 020D4 by The American Institute of Architects. All rights reserved. WARNING: This AIA' Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 4 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:31:30 on 08/18/2008 under Order No.100035 5 6 1 which expires /2/2009, and is not for resale. User Notes: a V (1855803198) § B.4.2 Amounts that accrue to the Owner in accordance with the provisions of Section B.4.1 shall be credited to the Owner as a deduction from the Cost of Work. ARTICLE B.5 CONTRACTS AND OTHER AGREEMENTS OTHER THAN FOR DESIGN PROFESSIONALS HIRED BY THE DESIGN-BUILDER § B.5.1 Those portions of the Work that the Design-Builder does not customarily perform with the Design-Builder's own personnel shall be performed by others under contracts or by other appropriate agreements with the Design- Builder. The Owner may designate specific persons or entities from whom the Design-Builder shall obtain bids. The Design-Builder shall obtain bids from Contractors and from suppliers of materials or equipment fabricated especially for the Work and shall deliver such bids to the Owner. The Owner shall then determine which bids will be accepted. The Design-Builder shall not be required to contract with anyone to whom the Design-Builder has reasonable objection. § B.5.2 Contracts or other agreements shall conform to the applicable payment provisions of this Design-Build Contract, and shall not be awarded on the basis of cost plus a fee without the Owner's prior consent. ARTICLE B.6 ACCOUNTING RECORDS § B.6.1 The Design-Builder or any affiliated person or entity which performs a portion of the Work shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under this Agreement, and the accounting and control systems shall be satisfactory to the Owner. The Owner and the Owner's accountants shall be afforded access to, and shall be permitted to audit and copy, the Design-Builder's records, books, correspondence, instructions, receipts, contracts, purchase orders, vouchers, memoranda and other data relating to this Agreement, and the Design-Builder shall preserve these for a period of three years after final payment, or for such longer period as may be required by law. § B.6.2 When the Design-Builder believes that all the Work required by the Agreement has been fully performed, the Design-Builder shall deliver to the Owner's accountant a final accounting of the Cost of the Work. § B.6.3 The Owner's accountants will review and report in writing on the Design-Builder's final accounting within 21 days after delivery of the final accounting. Based upon such Cost of the Work as the Owner's accountants report to be substantiated by the Design-Builder's final accounting, and provided the other conditions of Section A.9.10 of the Agreement have been met, the Owner will, within seven days after receipt of the written report of the Owner's accountants, notify the Design-Builder in writing of the Owner's intention to make final payment or to withhold final payment. § B.6.4 If the Owner's accountants report the Cost of the Work as substantiated by the Design-Builder's final accounting to be less than claimed by the Design-Builder, the Design-Builder shall be entitled to initiate resolution of the dispute pursuant to Article 6 of the Agreement and Article A.4 of Exhibit A, Terms and Conditions, for the disputed amount. If the Design-Builder fails to so initiate resolution of the dispute within the period of time required by Section A.4.1.2 of Exhibit A, Terms and Conditions, the substantiated amount reported by the Owner's accountants shall become binding on the Design-Builder. Pending a final resolution pursuant to Article 6 of the Agreement and Article A.4 of Exhibit A, Terms and Conditions, the Owner shall pay the Design-Builder the amount, if any, determined by the Owner's accountant to be due the Design-Builder. § B.6.5 If, subsequent to final payment and at the Owner's request, the Design-Builder incurs costs in connection with the correction of defective or non-conforming work as described in Article B.2, Costs to be Reimbursed, and not excluded by Article B.3, Costs Not to be Reimbursed, the Owner shall reimburse the Design-Builder such costs and the Design-Builder's Fee applicable thereto on the same basis as if such costs had been incurred prior to final payment, but not in excess of the Guaranteed Maximum Price, if any. If the Design-Builder has participated in savings as provided in Section 4.4.3.1 of the Agreement, the amount of such savings shall be recalculated and appropriate credit given to the Owner in determining the net amount to be paid by the Owner to the Design-Builder. Init. AIA Document A141 Tm - 2004 Exhibit B. Copyright © 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA'' Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, r, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:31:30 on 08/18/2008 under Order No.1000358556 1„ which ex Tres on 612/2009, and is not for resale. User Notes: I I '1'1~ ' (1855803198) Additions and Deletions Report for AIA® Document A 141 TM - 2004 Exhibit B This Additions and Deletions Report, as defined on page 1 of the associated document, reproduces below all text the author has added to the standard form AIA document in order to complete it, as well as any text the author may have added to or deleted from the original AIA text. Added text is shown underlined. Deleted text is indicated with a horizontal line through the original AIA text. Note: This Additions and Deletions Report is provided for information purposes only and is not incorporated into or constitute any part of the associated AIA document. This Additions and Deletions Report and its associated document were generated simultaneously by AIA software at 13:31:30 on 08/18/2008. PAGE 1 Arena Hall Voting Services - Brazos County Brazos County 300 East 26`s Street Bryan, Texas 77803 Greenway Constructors, Inc - Patterson Architects P.O. Box 11184 College Station, Texas 77842 Additions and Deletions Report for AIA Document A141 Tm - 2004 Exhibit B. Copyright ® 2004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:31:30 on 08/18/2008 under Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: '3 (1855803198) Document A141TM- 2004 Exhibit C ?.?!.AIA Insurance and Bonds for the following PROJECT: (Nance and location or address) Arena Hall Voting Services - Brazos County THE OWNER: (Name and address) Brazos County 300 East 26`h Street Bryan, Texas 77803 THE DESIGN-BUILDER: (Name and address) Greenway Constructors, Inc. - Patterson Architects P.O. Box 11184 College Station, Texas 77842 ADDITIONS AND DELETIONS: The author of this document has added information needed for its completion. The author may also have revised the text of the original AIA standard form. An Additions and Deletions Reportthat notes added information as well as revisions to the standard form text is available from the author and should be reviewed. A vertical line in the left margin of this document indicates where the author has added necessary information and where the author has added to or deleted from the original AIA text. This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. Consultation with an attorney is also encouraged with respect to professional licensing requirements in the jurisdiction where the Project is located. AIA Document A141 TM - 2004 Exhibit C. Copyright 020D4 by The American Institute of Architects. All rights reserved. WARNING: This AIA' Document is Init. protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:32:39 on 08/18/2008 under Order No.1000358556_1 which.expires on 61212009, and is not for resale. User Notes: I I a 7 (3806985955) ARTICLE C.1 The Owner and Design-Builder shall provide policies of liability insurance as required by the Design-Build Documents, or as follows: (Specify changes, if any, to the requirements of the Design-Build Documents, and for each type of insurance identify applicable limits and deductible amounts.) General Liability in the amount of $1,000,000 with Brazos County named as additional insured. Worker's Compensation in the amount of $1,000,000 with waiver of subrogation in favor of Brazos County. ARTICLE C.2 The Design-Builder shall provide surety bonds as follows: (Specify type and penal sum of bonds.) Type Penal Sum 0.00) Payment and Performance 100% § C.2.1 Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering payment of obligations arising under the Agreement, the Design-Builder shall promptly furnish a copy of the bonds or shall permit a copy to be made. Init. AIA Document A141 TM - 2004 Exhibit C. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA' Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, 2 may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by / AIA software at 13:32:39 on 08/18/2008 under Order No.1000358556_1 which expires on 6 2009, and is not for resale. User Notes: { I C (3806985955) Additions and Deletions Report for AIA® Document A 141 TM - 2004 Exhibit C This Additions and Deletions Report, as defined on page 1 of the associated document, reproduces below all text the author has added to the standard form AIA document in order to complete it, as well as any text the author may have added to or deleted from the original AIA text. Added text is shown underlined. Deleted text is indicated with a horizontal line through the original AIA text. Note: This Additions and Deletions Report is provided for information purposes only and is not incorporated into or constitute any part of the associated AIA document. This Additions and Deletions Report and its associated document were generated simultaneously by AIA software at 13:32:39 on 08/18/2008. PAGE1 Arena Hall Voting Services - Brazos County Brazos County 300 East 26 1h Street Bryan, Texas 77803 GreenwayConstructors, Inc. - Patterson Architects P.O. Box 11184 Colleae Station, Texas 77842 PAGE 2 General Liability in the amount of $1,000,000 with Brazos County named as additional insured. Worker's Compensation in the amount of $1,000,000 with waiver of subrogation in favor of Brazos County. Payment and Performance 100% Additions and Deletions Report for AIA Document A141 Tm - 2004 Exhibit C. Copyright 02004 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:32:39 on 08/18/2008,under,Order No.1000358556_1 which expires on 6/2/2009, and is not for resale. User Notes: (3806985955) -f-1/5 BRAZOS COUNTY, TEXAS POLICY AND PROCEDURES MANUAL JUSTICE OF THE PEACE TECHNOLOGY FUND Date: April 1, 2008 Authorized By: Commissioners' Court PURPOSE This policy establishes the authority of the Commissioners' Court to use Justice of the Peace Technology Funds in payment of upgrading technology, the cost of continuing education and training regarding technological enhancements to justice of the peace courts. The policy and following procedures were adopted by the Brazos County Commissioners' Court, on this the - day of 2008. This policy replaces and supersedes any previous County policy regarding Justice o e Peace Technology Funds. A. GENERAL POLICY 1. This policy establishes the standards used to evaluate the propriety of using Justice of the Peace Technology funds in payment of the purchase and maintenance of technological enhancements and continuing education or training for justice of the peace courts. 2. This policy establishes the levels of responsibility, accountability and payment authority with regards to Justice of the Peace Technology Fund. 3. The funds shall be administered by or under the direction of the Commissioners' Court in accordance with the Code of Criminal Procedure - Article 102.0173 (d) which designates the use of the funds. B. CONTINUING EDUCATION AND TRAINING 1. The cost of continuing education and training for justice of the peace court judges (J.P.) and clerks regarding technological enhancements for J.P. courts will be reimbursed only if proper documentation can be provided. 2. The education and training must be for information technology based coursework that will assist the department with technology in the efficient operation of the office. I a / APPROVED 3. Adequate proof of course material to include agenda and class hand outs to verify course content shall be required for consideration of reimbursement. 4. Unless the education and training can be shown to be of ongoing benefit to the taxpayers of Brazos County, funds will not be authorized for payment. C. TECHNOLGY ENHANCEMENTS 1. The purchase and maintenance of technological enhancements for a justice court are costs authorized to be paid which include the following: (A) computer systems; (B) computer networks; [examples are communication equipment to include modems, routers, and cabling] (C) computer hardware; [examples are new PCs, laptops, servers, mainframe enhancements, printers, monitors, computer systems enhancements including memory and hard drive space] (D) computer software; [examples are MS Office products, licensing, operating system upgrades, specialized software used to increase office productivity such as scheduling software] (E) imaging systems; [examples document scanners, video conferencing equipment] (F) electronic kiosk; (G) electronic ticket writers; and (IT) docket management systems. The above list is not an exclusive list. Other computer technology items may be considered on a case by case basis. 2. The funds shall be administered by or under the direction of the Commissioners' Court. The Court is committed to management of the funds in a fiscally responsible manner. To that end, planning and coordination with the Information Technology Department (IT) is required for maximization of technology enhancements with current County technology. The requests for use of the funds should be submitted to the Information Technology Department by the Justice of the Peace. The IT Department will review the request to ensure compatible with current technology. I I 1 APPROVED D. OTHER TECHNOLOGY Other technology enhancements will be considered for expenditure from the Justice of the Peace Technology Fund, including but not limited to, network photocopiers, scanner, fax, and printers, depending on the recommendation of the Budget Officer and approval by the County Auditor and Commissioners Court. E. OVERSIGHT RESPONSIBILITY 1. Initial responsibility to ascertain the propriety of originating a requisition for payment of technological enhancements, the cost of continuing education regarding technological enhancements rests with the justice of the peace. 2. Payments made by the County from this fund must provide, at minimum, a benefit at the departmental level. 3. Commissioners' Court is responsible for approving technological enhancements, the cost of continuing education regarding technological enhancements for justice of the peace courts made by each justice of the peace during preparation of the annual budget. E. PROCEDURES Each Justice of the Peace shall prepare a list of technological enhancements and continuing education and training regarding technological enhancements as a part of the budget preparation process. This list will be submitted to Commissioners' Court for approval during the budget approval process. 2. The payment of technological enhancements, the cost of continuing education regarding technological enhancements memberships or dues payments authorized by the Commissioners' Court during budget approval should be submitted for payment in the manner prescribed by the Brazos County Purchasing Policy. APPR Sims, County Judge date Brazos County Juvenile Detention Center Local Wellness Policy Introduction On June 30, 2004, Congress passed Section 204 of Public Law 108-265, of the Child Nutrition and WIC Reauthorization Act of 2004. This law requires each local education agency participating in a program, authorized by the Richard B. Russell National School Lunch Act (42 U.S.C.1751 et seq.) or the Child Nutrition Act of 1966 (42 U.S.C. 1771 et seq.), to establish a local school wellness policy by July 1, 2006. In response to this requirement, this juvenile detention center implemented a Local Wellness program that was developed by the Brazos County Juvenile Detention Center to enhance our resident's health and education as it is applied to this policy: Such practices began before July 1, 2006 and are now being documented in the form of a written policy and procedure. In addition, it is recommended that prior to adopting this policy the detention center involved residents, health professionals, juvenile detention officers and administrators. I I I~ I3 Brazos County Juvenile Detention Center Local Wellness Policy Local Wellness Policy for The Brazos County Juvenile Detention Center The Brazos County Juvenile Detention Center is committed to creating a healthy detention environment that enhances the development of lifelong wellness practices to promote healthy eating and physical activities that support resident achievement. Nutrition Education Every year, all residents detained in the Brazos County Juvenile Detention Center, grades 4-12, shall receive nutrition education that is aligned with the Texas Department of Agriculture Nutrition education. This teaches the knowledge, skills, and values needed to adopt healthy eating behaviors and shall be integrated into the curriculum. Nutrition education information shall be offered while detained in the detention facility including, but not limited to, school dining areas and classrooms. Staff members who provide nutrition education shall have the appropriate training. Nutrition Standards The Brazos County Juvenile Detention Center shall ensure that reimbursable school meals meet the program requirements and nutrition standards found in federal regulations.' The detention center shall offer and encourage residents to make good nutritious food choices. The detention center shall monitor all food and beverages served to residents, including those available outside the federally regulated child nutrition programs. The detention center shall consider nutrient density2 and portion size before permitting food and beverages to be served to residents. The detention center's superintendent shall continually evaluate policies and contracts. Contracts and vendors that do not meet the intent and purpose of this policy shall be referred to the Director of Juvenile Services for possible modifications or termination of the contract. ' Title 7-United States Department of Agriculture, Chapter ii - Food and Nutrition Service, Department of Agriculture, Part 210 - National School Lunch Program. http://www.access.qpo.qovlnara/cfr/waisidx 04/7cfr210 04.html 2 Nutrient dense foods are those that provide substantial amounts of vitamins and minerals and relatively fewer calories. Foods that are low in nutrient density are foods that supply calories but relatively small amounts of micronutrients (sometimes not at all). hUp-Lj/www. health gov/dietaryguidelines/dga2005/report/HTML/G1 Glossary.htm 2 vo I~ Physical Education and Physical Activity Opportunities The detention facility shall offer physical education opportunities that include the components of a quality physical education program.' Physical education shall equip residents with the knowledge, skills, and values necessary for lifelong physical activity. Physical education instruction shall be aligned with the Texas Juvenile Probation Commission standards for physical activities and aligned with the Texas Education Agency standards for physical education. Every day, all residents shall have the opportunity to participate regularly in supervised physical activities, either organized or unstructured, intended to maintain physical fitness and to understand the short- and long-term benefits of a physically active and healthy lifestyle. Those residents who pose a risk to the safety and security of the detention facility will be monitored and screened by the shift manager to decide whether they will have the opportunity to participate in any form of physical fitness dependent upon the child's current behavior. Other Detention Center-Based Activities Designed to Promote Resident Wellness The detention center may implement other appropriate programs that help create an environment that conveys consistent wellness messages and is conducive to healthy eating and physical activity. Implementation and Measurement The detention center's superintendent shall implement this policy and measure how well it is being managed and enforced. The detention center's superintendent shall develop and implement administrative rules consistent with this policy. Input from managers, teachers, detention center nurse, residents, and juvenile service administrators shall be considered before implementing such rules. A sustained effort is necessary to implement and enforce this policy. The detention center's superintendent shall report to the juvenile board upon request, the detention centers programs and efforts to meet the purpose and intent of this policy. Administrative Rules Regarding the Brazos County Juvenile Detention Center Local Wellness Policy In order to enact and enforce the Brazos County Juvenile Detention Center Local Wellness Policy, the Superintendent and administrators, with input from the assistant superintendent, detention center s Including goals for physical activity is required by federal law Section 204 of Public Law 108-265. Physical education, while recommended, is not required. http://www.fns.usda.gov/tn/Healthy/108-265.pdf 3 managers and supervisors will have developed these administrative rules. To assist in the creation of a healthy detention center environment, the detention center shall establish a Coordinated Detention Center Health Team that will provide an ongoing review and evaluation of the Brazos County Juvenile Detention Center's Local Wellness Policy and these administrative rules. The Superintendent shall appoint a member of the administrative staff of the detention center to organize the Coordinated Detention Center Health Team and invite appropriate department officers to become members of the Coordinated Detention Center Health Team. A Coordinated Detention Center Health Team may include representatives from the following areas: • Administrators from both Detention and Field services. • Counseling/psychological/placement services. • Food services • Health/Medical education services. • Probation services Staff shall be reminded that healthy residents come in all shapes and sizes. Residents should receive consistent messages and support for: • Self respect • Respect for others • Healthy eating • Physical activity These rules are subject to ongoing administrative review and modification as necessary to help assure compliance with the purpose and intent of the Brazos County Juvenile Detention Center Local Wellness Policy. Any citizen of Brazos County wishing to express a viewpoint, opinion, or complaint regarding these rules should contact: Patrick Munoz, Superintendent 1904 SH 21 West Bryan, Tx. 77803 979/823-3544 ext. 250 Residents, staff, and the community will be informed about the Local Wellness Policy annually. Nutrition Education Nutrition education, a component of comprehensive health education, shall be offered every year to all students of the detention center. The detention center may offer age-appropriate nutrition education classes. 4 o0 . In addition, nutrition education topics shall be integrated into the entire curriculum when appropriate. The Brazos County Juvenile Detention center shall implement a quality nutrition education program that addresses the following: Curriculum : • Has a curriculum aligned with the standards set forth by the Texas Juvenile Probation Commission as well as the Texas Department of Agriculture-Special Nutrition Program. • Equips residents to acquire the knowledge and skills needed to engage in sound nutrition behavior. Instruction and Assessment: • Aligns curriculum, instruction, and assessment. • Builds residents' confidence and competence in making healthy nutrition choices. • Engages residents in learning that prepares them to choose a healthy diet. • Includes residents of all abilities. Opportunity to Learn: • Includes residents of all abilities. • Provides adequate instructional time to build residents' confidence and competence in health-enhancing skills. This nutrition education may be provided in the form of handouts, wall or bulletin board posters or banners, postings on the departmental website. Nutrition Standards The detention center shall offer meal programs with menus meeting the meal patterns and nutrition standards established by the United States Department of Agriculture (USDA). The detention center shall serve residents and encourage residents to make healthy food choices based on the most current Dietary Guidelines for Americans. Food and beverages that compete with the detention centers policy of promoting a healthy environment shall not be offered. The detention center shall offer and promote the following food and beverages in all venues outside federally regulated child nutrition programs: • Whole and enriched grain products that are high in fiber, low in added fats and sugars, and served in appropriate portion sizes consistent with the current USDA standards. • Fresh, frozen, canned or dried fruits and vegetables using healthy food preparation techniques, and 100 percent fruit or vegetable juice in 12-ounce servings or less. 5 Nonfat, low-fat, plain and/or flavored milk and yogurt, nonfat and/or low-fat real cheese, rather than imitation cheese. Offer the following serving sizes: yogurt in eight-ounce servings or less, milk in 16-ounce servings or less, cheese in 1.5-ounce (two- ounce, if processed cheese) servings or less. Nuts, nut butters, seeds, trail mix, and/or soybean snacks in one- ounce portions or less; portions of three ounces or less of cooked lean meat, poultry, or fish using healthy food preparation techniques. Accompaniments (sauces, dressings, and dips), if offered, in one- . ounce servings or less.' The detention center shall monitor food service distributors and snack vendors to ensure that they provide predominantly healthy food and beverage choices that comply with this policy's purpose in all venues. The detention center shall not use food as a reward or punishment for any type of behavior. The detention center shall encourage serving healthy food at all detention center celebrations. Physical Education and Physical Activity Opportunities Developmentally appropriate physical education shall be offered every year to all residents of the detention center. In addition, physical education topics shall be integrated into the entire curriculum when appropriate. The detention center shall implement a quality physical education program that addresses the following: Curriculum : • Equips residents with the knowledge, skills, and attitudes necessary for lifelong physical activity. • Has a curriculum aligned with the Texas Juvenile Probation Commission on physical education and The Texas Education Agency on physical education. • Influences personal and social skill development. Instruction and Assessment: Aligns curriculum, instruction, and assessment. • Builds residents' confidence and competence in physical abilities Engages residents in curriculum choices that prepare them for a wide variety of lifetime activities. • Includes residents of all abilities. Keeps all residents involved in purposeful activity for a period of one hour in a structure recreation activity and one hour in a non- p 6 O structured recreation activity as mandated by standards set forth by the Texas Juvenile Probation Commission. Opportunity to Learn: • Builds residents' confidence and competence in physical abilities. • Has an officer-to-student ratio consistent with the ratios mandated in standards by the Texas Juvenile Probation Commission. • Has enough functional equipment for each resident to actively participate. • Includes residents of all abilities." • Offers instructional periods totaling 150 minutes per week (elementary) and 225 minutes per week (middle and- high school). • Provides facilities to implement the curriculum for the number of students served. The detention center should offer daily opportunities for unstructured physical activity, commonly referred to as recreation, for all students Recreation should be in addition to physical education class time and not be a substitute for physical education. The detention center shall provide proper equipment and a safe area designated for supervised a recreational setting. The detention center staff should not withhold participation in recreation from residents nor cancel recreation/pt activities unless this jeopardizes the safety and security of the detention facility. The detention center shall provide opportunities for some type of physical activity for those residents who might be on a room confinement who does not pose a threat to the safety and security of the detention center or its residents and staff. Other Detention-Based Activities Designed to Promote Resident- Wellness The detention center shall strive to create a healthy environment that promotes healthy eating and physical activity. In order to create this environment, the following activities shall be implemented: Dining Environment The detention center shall provide: o a clean, safe, enjoyable meal environment for residents, o enough space and serving areas to ensure all residents have access to detention center meals with minimum wait time, o drinking water accessibility, so that residents can get water at meals and throughout the day, encouragement to maximize resident participation in the detention center meal programs. Time to Eat The detention center shall ensure: 11a 19 7 scheduled residents to eat their meal. o adequate time f for as near to the middle of the o that lunch time school day as possible, and Food or Physical Activity as a Reward or Punishment The detention center shall: ols o prohibit the use of food as a reward punishment in or other physical o not deny residents participation activities as a form of discipline. o not use physical activity as a punishment. Consistent Detention Centers Activities Detention nECenter shall: The Brazos County o have all classrooms structured to ensure that detention center's school activities and the environment support healthy behaviors. o provide opportunities for on-going professional training and development for foodservice staff and officers in the areas of nutrition and physical education, o encourage residents, probation officers, detention officers, administrators and foodservice professionals to serve as role models in practicing healthy eating and being physically active in their personal lives. o encourage and provide opportunities for residents and staff to practice healthy eating and serve as role models in school dining areas, Im lementation and Measurement All employees of the Brazos County Juvenile Detention Center are encouraged to be a positive healthy lifestyle role model for residents by following, at a minimum, these administrative rules. Residents can learn healthy lifestyle habits by observing d the ophysical patterns of detention center personnel a role models in their lives. In order to send consistent messages to residents, all adults in the detention center environment are choices encouraged to make healthy food through is Coordinated activity. 16 The detention center Detention Center Health Team and building level staff to find cost effective ways to encourage staff wellness. (Employees choosing to violate or ignore these rules will Superin~ende~teof to possible disciplinary action as deter by the detention center in accordance with this department's policy regarding this local wellness plan). Ila o) 0 8 The Brazos County Juvenile Detention Center local wellness plan and the implementation of this plan has been approved by the authority of the commissioners of Brazos County and the Brazos County Judge. Superintendent Date BRAZOS COUNTY / l HUMAN RESOURCES DEPARTMENT 300 E. 26TH ST. SUITE 107 BRYAN, TEXAS 77803-5327 PHONE (979) 361-4114 FAX (979) 823-6993 MEMORANDUM Date: August 13, 2008 To: Commissioner's Court From: Jennifer Salaza HR Director Subject: Revision to Employee Manual It has been brought to my attention that the Longevity policy in the Employee Manual needs to be revised to include regular part-time employees. With your approval the following sections will be revised as follows: Revision of Section 4.03.2 Eligibility: Old: All full-time regular employees, to include elected officials and to exclude temporary employees, shall be eligible for the longevity pay benefit. New: All full-time and part-time regular employees, to include elected officials and to exclude temporary employees, shall be eligible for the longevity pay benefit. Thank you. APPRO Sims, County Judge date 40 3}'~ BRAZOSCOUNTY COMMISSIONERS' COURT ACTION FORM DEPARTMENT Road and Bridge NUMBER 56001000 DATE OF COURT MEETING: August 19, 2008 ITEM: Request from Wickson Creek Special Utility District to construct a road bore for water line installations in the right of way of Dilly Shaw Tap Road (approximately 200 ft. from Reed Lane). Site is located in precinct 2. SOURCE OF FUNDS: N/A REQUIREMENTS: 1. No work will be permitted between front slope and/or back slope. 2. All installation(s) shall be constructed in designated utility easements, if applicable. If no utility easement exists, the installation(s) shall be 1) within 3-5' of and parallel to the right- of-way Be and/or 2) in the case of a road bore, perpendicular to the right-of-way line. 3. If clearing of brush, trees and other obstruction is necessary, it shall be the Applicant's responsibility to do so and to remove all cleared brush, trees etc. from county right-of-way. 4. Ditch line shall be compacted to 90% standard density ASTM-Test Method No. D-698; test shall be conducted by an independent geotechnical testing firm; copies of all test results shall be furnished to the office of the Brazos County Engineer. 5. Construction shall be in strict conformance to the latest Texas Manual of Uniform Traffic Control Devices for Streets and Highways, published by the Texas Department of Transportation, and all other State and Federal laws governing utility construction. NOTES/EXCEPTIONS: ACTION REQUESTED OR ALTERNATIVES: SUB T BY: Richard F. Vance, P.E. County Engineer CC2008-060 This Request Date: 77, BY: ommissioner E. Duane Peters Precinct 2 I /Denied ❑ by Commissioners' Court , County Judge 0 n r ~3. L~ C I U 1 e nVn~- I i i~ i ~I II jy it ~i I j o ti I 3 1 Q y~ ~ ✓K1 T REQUEST FOR PROPOSED INSTALLATION IN COUNTY RIGHT-OF-WAY TO THE COMMISSIONERS' COURT OF BRAZOS COUNTY, TEXAS BRAZOS COUNTY COURTHOUSE BRYAN, TEXAS 77803 Formal notice is hereby given that (applicant) Wickson Creek Special Utility District proposes to place a (type) waterline within across_ X the right-of-way of (road) DILLY SHAW TAP ROAD in Brazos County, Texas as follows: The location or description of the proposed installation is more fully shown by 3 copies of the drawings attached to this notice. I understand and agree that: 1. The County Engineer must be notified 72 hours prior to the beginning of construction in order that he, or his designated inspector, may inspect the actual installation. 2. All damage to the roadways and rights-of-way will be repaired to their original condition to the satisfaction of the County Engineer. 3. Brazos County reserves the right to require Applicant to relocate or lower any such line at no cost to Brazos County, should same become necessary due to widening or lowering, or other alteration of the roadway or right-of-way. 4. Brazos County will in no way be responsible for any damage which might occur to any existing utility lines in the right-of-way. 5. The line will be constructed and maintained on the County right-of-way in accordance with the Utility Accommodation Policy which was adopted by the Texas Department of Transportation on May 29, 1989. 6. The line or lines will be constructed no less than twenty-four inches (24") lower than the lowest part of the drainage or bar ditch and the drainage is to be considered at least two feet (2') below the center of the roadway. 7. All sites will be barricaded during the construction period. Construction of this line ywi(I begin on or after the -1-9day of AUGUST 2008 Firm: Wic n Creek S ecial Utility District Title" General Manager (j Address: P. 0. Box 4756 Bryan, Texas 77805 Phone: 979-589-3030 APPROVED BY COMMISSIONERS' COURT ON: . Date Randy SimsAounty Judge P Brazos County Courthouse 300 E. 26th, Suite 313 DATE: August 13, 2008 TO: Hon. Randy Sims, County Judge Hon. Lloyd Wassermann, Commissioner Hon. Duane Peters, Commissioner Hon. Kenny Mallard, Commissioner Hon. Carey Cauley, Commissioner Candy Gallego, Administrative Assistant FROM: Kay Hamilton, County Treasurer RE: Quarter Ending 06/30/08 Investment Report KAY HAMILTON County Treasurer Bryan, Texas 77803 (979) 361-4340 This report is made in accordance with provisions of Gov.Code 2256, The Public Funds Investment Act, which requires quarterly reporting of investment transactions to the Commissioners' Court. The Brazos County Investment portfolio earned an average yield of 2.3306% on the quarterly average balance of $2,301,722.80 invested with TexPool for the period ending 06/30/2008. Investment interest deposited during the quarter was $13,344.38. Actual ending balance for June 2008 was $2,306,061.20. The average Earnings Credit Rate on checking account interest for the quarter ending 06/30/2008 was 1.7767% netting $286,343.03 on an average depository balance of $51,917,033.47. Total year-to-date interest earned $1,240,378.23 Investment Strategy During this period of investing in an unstable economic environment, it seems prudent to protect County funds by keeping the majority of funds available for investment in the County's depository where all funds are 110% collateralized. The County also maintains an investment account with Texpool which, though not collateralized, does provide the safety of an overnight market. As economists are anticipating a possible increase in the Fed rate, it does not seem prudent to invest in products with extended maturities. The investment of Brazos County Bond proceeds will require special consideration; otherwise, the County's investment strategy currently remains unchanged with a concentration of County funds in the Brazos County Depository. ~~a 11 14, Summary of Portfolio Changes The deposit of interest is the only portfolio change to balances at this time and the Weighted Average Maturity of investments remains at 1 day due to the liquidity of funds invested with TexPool and on deposit at CitiBank of Texas. INTEREST RATES AND EARNINGS BY MONTH TexPool CheckingAcct Earnings Interest Interest Rate Interest Credit Rate October 2007 9,398.82 4.9280 159,740.02 4.24 November 2007 8,737.87 4.7144 142,265.40 4.25 December 2007 8,760.51 4.5565 142,297.89 3.62 Q/E 12/31/2007 26,897.20 4.7330 444,303.31 4.0367 January 2008 8,195.07 4.2460 171,573.88 3.35 February 2008 6,228.80 3.4374 157,079.33 3.10 March 2008 5,773.09 2.9723 120,640.14 2.47 Q/E 03/31/2008 20,196.96 3.5519 449,293.35 2.9733 April 2008 4,611.32 2.4471 70,814.21 1.61 May 2008 4,450.90 2.2812 70,905.57 1.64 June 2008 4,282.16 2.2635 144,623.25 2.08 Q/E 06/30/2008 13,344.38 2.3306 286,343.03 1.7767 YTD TOTALS 60,438.54 3.5385 1,179,939.69 2.9289 1 la aF7 r r 0 N O O M N 69 O O 'C CL C O O F- LL i4 L d C d V} O O 0 x N E~ O U O Su a3 O N cc O ar. co O O N d C O L w+ c O E d L w L O V.. .O CD w+ N O C .N V C 7 t3 r.. O N O U is O F- O O r a+ t0 V d C a+ C m E A .O .V L a d L ea co m ts V w 0 O IL x d F- 3 d L N w+ C d E r N d C R d N 3 R V d .G 4) E m y d t 0 d 7 R Y O O m O a w F- c.~ a co O C M ~O O z 0 z w w w F- G' Q U J O O M x w a O w O a z D LL G w J O O a 0 z D LL III a9 INVESTMENTS BY FUND GROUP AND STRATEGY TYPE FUND 1- POOLED FUND GROUP General Fund $ 2,306,061.20 Health Endowment Fund $ - State Lateral Road $ - Courthouse Security $ - Voter Registration $ - Vehicle Inventory Tax Interest $ - e9 E N f General Obligation Debt Svc. $ - ,..fit 9 FB` :E~ General Permanent Impv. $ - Exposition Center Fund $ - C.O. Issue 2003 $ - C.O. Issue 2004 $ - ,E100E R BOOK VALUE OF ALL INVESTED FUNDS FOR JUNE 2008 $ 2,306,061.20 Attached are the following reports: 1) Cost Amount Summary of Investments by Fund 2) TexPool Quarter End Activity Report 3) Investments by Fund Group and Strategy Type To the best of our knowledge the investment portfolio in this report conforms in all respects to the Investment Policy of Brazos County and is being managed under the investment strategy of said policy as approved by the Commissioner's Court of Brazos County. Ktfy Hamilton; County Treasurer erri White, Chief Deputy Treasurer 6 Date ok Iq Date iia 9/