**Exhibit 10.28**

 

**AIA****®**** Document A102****TM**** — 2007**

 

***Standard Form of Agreement Between Owner and Contractor***

*wherethe basis of payment is the Cost of the Work Plus a Fee with a GuaranteedMaximum Price*

 

**AGREEMENT** made as of the «**17th**» day of «**November**» in the year «**2009**»

*(Inwords, indicate day, month and year.)*

 

**BETWEEN** the Owner:

*(Name,legal status, address and other information)*

 

**TidelandsBank**

**PostOffice Box 1087**

**Mt.Pleasant, SC 29465**

«  »

 

and the Contractor:

*(Name,legal status, address and other information)*

 

**«HillConstruction »**

**«295Seven Farms Drive, Suite 301»**

**«Charleston,SC 29492 »**

«  »

 

for the followingProject:

*(Name,location and detailed description)*

 

**TidelandsBank Executive Office Building**

**850Lowcountry Blvd.**

**Mt.Pleasant, SC 29464**

 

The Architect:

*(Name,legal status, address and other information)*

 

**Glick/Boehm &Associates, Inc.**

**493 KingStreet, Suite 100**

**Charleston,SC 29403**

 

«  »

«  »

**NOTICE:THIS CONTRACT IS SUBJECT TO ARBITRATION PURSUANT TO THE UNIFORM ARBITRATIONACT, SOUTH CAROLINA CODE SECTION 15-48-10 THROUGH 15-48-240.**

 

The Owner and Contractoragree as follows.

 

**ADDITIONS AND DELETIONS:**

Theauthor of this document has added information needed for its completion. Theauthor may also have revised the text of the original AIA standard form. An *Additions and Deletions Report*that notesadded information as well as revisions to the standard form text is availablefrom the author and should be reviewed.

 

Thisdocument has important legal consequences. Consultation with an attorney isencouraged with respect to its completion or modification.

 

Thisdocument is not intended for use in competitive bidding.

 

AIADocument A201TM—2007, General Conditions of the Contract for Construction, isadopted in this document by reference. Do not use with other general conditionsunless this document is modified.

 

**ELECTRONIC COPYING** of any portion of this AIA® Document to another electronic file isprohibited and constitutes a violation of copyright laws as set forth in thefooter of this document.

 

**AIA Document A102TM — 2007 (formerly A111TM — 1997).** Copyright ©1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987, 1997 and 2007 byThe American Institute of Architects**. Allrights reserved. WARNING: This AIA****®**** Document is protected by U.S. Copyright Lawand International Treaties. Unauthorized reproduction or distribution of thisAIA****®**** Document, or any portion of it, may result insevere civil and criminal penalties, and will be prosecuted to the maximumextent possible under the law.** This draft was produced byAIA software at 13:46:21 on 08/25/2009 under Order No.9771344530_1 whichexpires on 04/29/2010, and is not for resale.
| **User Notes:** | (1848791117) |
|-----------------|--------------|

 

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# **TABLE OF ARTICLES**

#  

**1****                                        ****THE CONTRACT DOCUMENTS**

 

**2****                                        ****THE WORK OF THISCONTRACT**

 

**3****                                        ****RELATIONSHIP OF THEPARTIES**

 

**4****                                        ****DATE OF COMMENCEMENT ANDSUBSTANTIAL COMPLETION**

 

**5****                                        ****CONTRACT SUM**

 

**6****                                        ****CHANGES IN THE WORK**

 

**7****                                        ****COSTS TO BE REIMBURSED**

 

**8****                                        ****COSTS NOT TO BEREIMBURSED**

 

**9****                                        ****DISCOUNTS, REBATES ANDREFUNDS**

 

**10****                                 ****SUBCONTRACTS AND OTHERAGREEMENTS**

 

**11****                                 ****ACCOUNTING RECORDS**

 

**12****                                 ****PAYMENTS**

 

**13****                                 ****DISPUTE RESOLUTION**

 

**14****                                 ****TERMINATION ORSUSPENSION**

 

**15****                                 ****MISCELLANEOUS PROVISIONS**

 

**16****                                 ****ENUMERATION OF CONTRACTDOCUMENTS**

 

**17****                                 ****INSURANCE AND BONDS**

 

# **ARTICLE 1   THE CONTRACT DOCUMENTS**

The Contract Documentsconsist of this Agreement, Conditions of the Contract (General, Supplementaryand other Conditions), Drawings, Specifications, Addenda issued prior toexecution of this Agreement, other documents listed in this Agreement andModifications issued after execution of this Agreement, all of which form theContract, and are as fully a part of the Contract as if attached to thisAgreement or repeated herein. The Contract represents the entire and integratedagreement between the parties hereto and supersedes prior negotiations,representations or agreements, either written or oral. If anything in the otherContract Documents, other than a Modification, is inconsistent with thisAgreement, this Agreement shall govern.

 

# **ARTICLE 2   THE WORK OF THIS CONTRACT**

The Contractor shallfully execute the Work described in the Contract Documents, except asspecifically indicated in the Contract Documents to be the responsibility ofothers.

 

# **ARTICLE 3   RELATIONSHIP OF THE PARTIES**

The Contractor acceptsthe relationship of trust and confidence established by this Agreement andcovenants with the Owner to cooperate with the Architect and exercise theContractor’s skill and judgment in furthering the interests of the Owner; tofurnish efficient business administration and supervision; to furnish at alltimes an adequate supply of workers and materials; and to perform the Work inan expeditious and economical manner consistent with the Owner’s interests. TheOwner agrees to furnish and approve, in a timely manner, information requiredby the Contractor and to make payments to the Contractor in accordance with therequirements of the Contract Documents.

 

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# **ARTICLE 4   DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION**

**§ 4.1**The date ofcommencement of the Work shall be the date of this Agreement unless a differentdate is stated below or provision is made for the date to be fixed in a noticeto proceed issued by the Owner.

*(Insertthe date of commencement, if it differs from the date of this Agreement or, ifapplicable, state that the date will be fixed in a notice to proceed.)*

 

**The Dateof Commencement is Date of Permit.**

 

If, prior to commencementof the Work, the Owner requires time to file mortgages and other securityinterests, the Owner’s time requirement shall be as follows:

 

«  »

 

**§ 4.2**The Contract Timeshall be measured from the date of commencement.

 

**§ 4.3**The Contractorshall achieve Substantial Completion of the entire Work not later than  « » days from the date of commencement, or asfollows:

*(Insertnumber of calendar days. Alternatively, a calendar date may be used whencoordinated with the date of commencement. If appropriate, insert requirementsfor earlier Substantial Completion of certain portions of the Work.)*

 

**October 15,2010**

 
| **Portion of Work**                        | ** ** | **Substantial  Completion date** |
|--------------------------------------------|------------|----------------------------------|
| **Core &  Shell**                 | ** ** | **September 15,  2010**     |
| **1****st**** Floor Tenant Space**    | ** ** | **September 15,  2010**     |
| **2****nd**** Floor Executive Space** | ** ** | **October 15,  2010**       |

 

, subject to adjustmentsof this Contract Time as provided in the Contract Documents.

 

*(Insertprovisions, if any, for liquidated damages relating to failure to achieveSubstantial Completion on time, or for bonus payments for early completion ofthe Work.)*

 

«  »

 

# **ARTICLE 5   CONTRACT SUM**

**§ 5.1** The Owner shall pay the Contractor theContract Sum in current funds for the Contractor’s performance of the Contract.The Contract Sum is the Cost of the Work as defined in Article 7 plus theContractor’s Fee.

 

**§ 5.1.1**The Contractor’sFee:

*(Statea lump sum, percentage of Cost of the Work or other provision for determiningthe Contractor’s Fee.)*

 

**Contractor’sfee established at 6.7 percent (6.7%) of the cost of the work.**

 

**§ 5.1.2**The method ofadjustment of the Contractor’s Fee for changes in the Work:

 

«  »

 

**§ 5.1.3**Limitations, ifany, on a Subcontractor’s overhead and profit for increases in the cost of itsportion of the Work:

 

«  »

 

**§ 5.1.4**Rental rates forContractor-owned equipment shall not exceed « » ( «  » ) of the standard ratepaid at the place of the Project.

 

**§ 5.1.5**Unit prices, ifany:

*(Identifyand state the unit price; state the quantity limitations, if any, to which theunit price will be applicable.)*

 

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| **Item**                                                               | ** ** | **Units  and Limitations** | ** ** | **Price  Per Unit ($ 0.00)** |
|------------------------------------------------------------------------|------------|----------------------------|------------|-----------------------------------|
| **CY for  removing unsuitable soil****& for importing  good fill** |       | **CY**                     | ** ** | **$25 /  CY**                     |

 

**§ 5.2GUARANTEED MAXIMUM PRICE**

**§ 5.2.1**The Contract Sumis guaranteed by the Contractor not to exceed ** Four Million, Four Hundred Sixty-Two ThousandOne Hundred Forty-Three Dollars and No Cents** ($**4,462,143.00** ), subject to additions anddeductions by Change Order as provided in the Contract Documents. Such maximumsum is referred to in the Contract Documents as the Guaranteed Maximum Price.Costs which would cause the Guaranteed Maximum Price to be exceeded shall bepaid by the Contractor without reimbursement by the Owner.

*(Insertspecific provisions if the Contractor is to participate in any savings.)*

 

**SavingsSplit to be determined per table below:**

 
| **Tidelands  Bank**    | ** ** | **Seventy  percent (70%)** |
|------------------------|------------|----------------------------|
| **Hill  Construction** | ** ** | **Thirty  percent (30%)**  |

 

**§ 5.2.2**The GuaranteedMaximum Price is based on the following alternates, if any, which are describedin the Contract Documents and are hereby accepted by the Owner:

*(Statethe numbers or other identification of accepted alternates. If bidding orproposal documents permit the Owner to accept other alternates subsequent tothe execution of this Agreement, attach a schedule of such other alternatesshowing the amount for each and the date when the amount expires.)*

 

«  »

 

**§ 5.2.3**Allowances includedin the Guaranteed Maximum Price, if any:

*(Identifyallowance and state exclusions, if any, from the allowance price.)*

 
| **Item**                               | ** ** | **Price** | ** **    |
|----------------------------------------|------------|-----------|---------------|
| **Finish Hardware**                    | ** ** | **$**     | **55,000.00** | ** ** |
| **Exterior & Interior Signs** | ** ** | **$**     | **18,000.00** | ** ** |

 

**§ 5.2.4**Assumptions, ifany, on which the Guaranteed Maximum Price is based:

 

«  »

 

**§ 5.2.5** To the extent that the Drawings andSpecifications are anticipated to require further development by the Architect,the Contractor has provided in the Guaranteed Maximum Price for such furtherdevelopment consistent with the Contract Documents and reasonably inferabletherefrom.  Such further development doesnot include such things as changes in scope, systems, kinds and quality ofmaterials, finishes or equipment, all of which, if required, shall be incorporatedby Change Order.

 

# **ARTICLE 6   CHANGES IN THE WORK**

**§ 6.1**Adjustments tothe Guaranteed Maximum Price on account of changes in the Work may bedetermined by any of the methods listed in Section 7.3.3 of AIA DocumentA201—2007, General Conditions of the Contract for Construction.

 

**§ 6.2**In calculatingadjustments to subcontracts (except those awarded with the Owner’s priorconsent on the basis of cost plus a fee), the terms “cost” and “fee” as used inSection 7.3.3.3 of AIA Document A201—2007 and the term “costs” as used in Section 7.3.7of AIA Document A201—2007 shall have the meanings assigned to them in AIADocument A201—2007 and shall not be modified by Articles 5, 7 and 8 of thisAgreement. Adjustments to subcontracts awarded with the Owner’s prior consenton the basis of cost plus a fee shall be calculated in accordance with theterms of those subcontracts.

 

**§ 6.3**In calculatingadjustments to the Guaranteed Maximum Price, the terms “cost” and “costs” asused in the above-referenced provisions of AIA Document A201—2007 shall meanthe Cost of the Work as defined in Article 7 of this Agreement and theterm “fee” shall mean the Contractor’s Fee as defined in Section 5.1.1 ofthis Agreement.

 

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**§ 6.4**If no specificprovision is made in Article 5 for adjustment of the Contractor’s Fee inthe case of changes in the Work, or if the extent of such changes is such, inthe aggregate, that application of the adjustment provisions of Article 5will cause substantial inequity to the Owner or Contractor, the Contractor’sFee shall be equitably adjusted on the same basis that was used to establishthe Fee for the original Work, and the Guaranteed Maximum Price shall beadjusted accordingly.

 

# **ARTICLE 7   COSTS TO BE REIMBURSED**

**§ 7.1COST OF THE WORK**

**§ 7.1.1**The term Cost ofthe Work shall mean costs necessarily incurred by the Contractor in the properperformance of the Work. Such costs shall be at rates not higher than thestandard paid at the place of the Project except with prior consent of theOwner. The Cost of the Work shall include only the items set forth in this Article 7.

 

**§ 7.1.2**Where any cost issubject to the Owner’s prior approval, the Contractor shall obtain thisapproval prior to incurring the cost. The parties shall endeavor to identifyany such costs prior to executing this Agreement.

 

**§ 7.2 LABOR COSTS**

**§ 7.2.1**Wages ofconstruction workers directly employed by the Contractor to perform theconstruction of the Work at the site or, with the Owner’s prior approval, atoff-site workshops.

 

**§ 7.2.2**Wages or salariesof the Contractor’s supervisory and administrative personnel when stationed atthe site with the Owner’s prior approval.

*(If itis intended that the wages or salaries of certain personnel stationed at theContractor’s principal or other offices shall be included in the Cost of theWork, identify in Article 15, the personnel to be included, whether forall or only part of their time, and the rates at which their time will becharged to the Work.)*

 

**§ 7.2.3**Wages andsalaries of the Contractor’s supervisory or administrative personnel engaged atfactories, workshops or on the road, in expediting the production ortransportation of materials or equipment required for the Work, but only forthat portion of their time required for the Work.

 

**§ 7.2.4**Costs paid orincurred by the Contractor for taxes, insurance, contributions, assessments andbenefits required by law or collective bargaining agreements and, for personnelnot covered by such agreements, customary benefits such as sick leave, medicaland health benefits, holidays, vacations and pensions, provided such costs arebased on wages and salaries included in the Cost of the Work under Sections7.2.1 through 7.2.3.

 

**§ 7.2.5**Bonuses, profitsharing, incentive compensation and any other discretionary payments paid toanyone hired by the Contractor or paid to any Subcontractor or vendor, with theOwner’s prior approval.

 

**§ 7.3 SUBCONTRACT COSTS**

Payments made by theContractor to Subcontractors in accordance with the requirements of thesubcontracts.

 

**§ 7.4COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED CONSTRUCTION**

**§ 7.4.1**Costs, includingtransportation and storage, of materials and equipment incorporated or to beincorporated in the completed construction.

 

**§ 7.4.2**Costs ofmaterials described in the preceding Section 7.4.1 in excess of thoseactually installed to allow for reasonable waste and spoilage. Unused excessmaterials, if any, shall become the Owner’s property at the completion of theWork or, at the Owner’s option, shall be sold by the Contractor. Any amountsrealized from such sales shall be credited to the Owner as a deduction from theCost of the Work.

 

**§ 7.5COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND RELATED ITEMS**

**§ 7.5.1**Costs oftransportation , storage, installation, maintenance, dismantling and removal ofmaterials, supplies, temporary facilities, machinery, equipment and hand toolsnot customarily owned by construction workers that are provided by theContractor at the site and fully consumed in the performance of the Work. Costsof materials, supplies, temporary facilities, machinery, equipment and toolsthat are not fully consumed shall be based on the cost or value of the item atthe time it is first used on the Project site less the value of the item whenit is no longer used at the Project site. Costs for items not fully consumed bythe Contractor shall mean fair market value.

 

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**§ 7.5.2**Rental chargesfor temporary facilities, machinery, equipment and hand tools not customarilyowned by construction workers that are provided by the Contractor at the siteand costs of transportation, installation, minor repairs, dismantling andremoval. The total rental cost of any Contractor-owned item may not exceed thepurchase price of any comparable item. Rates of Contractor-owned equipment andquantities of equipment shall be subject to the Owner’s prior approval.

 

**§ 7.5.3**Costs of removalof debris from the site of the Work and its proper and legal disposal.

 

**§ 7.5.4**Costs of documentreproductions, facsimile transmissions and long-distance telephone calls,postage and parcel delivery charges, telephone service at the site andreasonable petty cash expenses of the site office.

 

**§ 7.5.5**Costs ofmaterials and equipment suitably stored off the site at a mutually acceptablelocation, subject to the Owner’s prior approval.

 

**§ 7.6 MISCELLANEOUS COSTS**

**§ 7.6.1**Premiums for thatportion of insurance and bonds required by the Contract Documents that can bedirectly attributed to this Contract. Self-insurance for either full or partialamounts of the coverages required by the Contract Documents, with the Owner’sprior approval.

 

**§ 7.6.2**Sales, use orsimilar taxes imposed by a governmental authority that are related to the Workand for which the Contractor is liable.

 

**§ 7.6.3**Fees andassessments for the building permit and for other permits, licenses andinspections for which the Contractor is required by the Contract Documents topay.

 

**§ 7.6.4**Fees oflaboratories for tests required by the Contract Documents, except those relatedto defective or nonconforming Work for which reimbursement is excluded by Section 13.5.3of AIA Document A201—2007 or by other provisions of the Contract Documents, andwhich do not fall within the scope of Section 7.7.3.

 

**§ 7.6.5**Royalties andlicense fees paid for the use of a particular design, process or productrequired by the Contract Documents; the cost of defending suits or claims forinfringement of patent rights arising from such requirement of the ContractDocuments; and payments made in accordance with legal judgments against theContractor resulting from such suits or claims and payments of settlements madewith the Owner’s consent. However, such costs of legal defenses, judgments andsettlements shall not be included in the calculation of the Contractor’s Fee orsubject to the Guaranteed Maximum Price. If such royalties, fees and costs areexcluded by the last sentence of Section 3.17 of AIA Document A201—2007 orother provisions of the Contract Documents, then they shall not be included inthe Cost of the Work.

 

**§ 7.6.6**Costs forelectronic equipment and software, directly related to the Work with the Owner’sprior approval.

 

**§ 7.6.7**Deposits lost forcauses other than the Contractor’s negligence or failure to fulfill a specificresponsibility in the Contract Documents.

 

**§ 7.6.8**Legal, mediationand arbitration costs, including attorneys’ fees, other than those arising fromdisputes between the Owner and Contractor, reasonably incurred by theContractor after the execution of this Agreement in the performance of the Workand with the Owner’s prior approval, which shall not be unreasonably withheld.

 

**§ 7.6.9**Subject to theOwner’s prior approval, expenses incurred in accordance with the Contractor’sstandard written personnel policy for relocation and temporary livingallowances of the Contractor’s personnel required for the Work.

 

**§ 7.6.10** That portion of the reasonable expensesof the Contractor’s supervisory or administrative personnel incurred whiletraveling in discharge of duties connected with the Work.

 

**§ 7.7OTHER COSTS AND EMERGENCIES**

**§ 7.7.1**Other costsincurred in the performance of the Work if, and to the extent, approved in advancein writing by the Owner.

 

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**§ 7.7.2**Costs incurred intaking action to prevent threatened damage, injury or loss in case of anemergency affecting the safety of persons and property, as provided in Section 10.4of AIA Document A201—2007.

 

**§ 7.7.3**Costs ofrepairing or correcting damaged or nonconforming Work executed by theContractor, Subcontractors or suppliers, provided that such damaged ornonconforming Work was not caused by negligence or failure to fulfill aspecific responsibility of the Contractor and only to the extent that the costof repair or correction is not recovered by the Contractor from insurance,sureties, Subcontractors, suppliers, or others.

 

**§ 7.8RELATED PARTY TRANSACTIONS**

**§ 7.8.1** For purposes of Section 7.8, theterm “related party” shall mean a parent, subsidiary, affiliate or other entityhaving common ownership or management with the Contractor; any entity in whichany stockholder in, or management employee of, the Contractor owns any interestin excess of ten percent in the aggregate; or any person or entity which hasthe right to control the business or affairs of the Contractor. The term “relatedparty” includes any member of the immediate family of any person identifiedabove.

 

**§ 7.8.2** If any of the costs to be reimbursedarise from a transaction between the Contractor and a related party, theContractor shall notify the Owner of the specific nature of the contemplatedtransaction, including the identity of the related party and the anticipatedcost to be incurred, before any such transaction is consummated or costincurred. If the Owner, after such notification, authorizes the proposedtransaction, then the cost incurred shall be included as a cost to bereimbursed, and the Contractor shall procure the Work, equipment, goods orservice from the related party, as a Subcontractor, according to the terms of Article 10.If the Owner fails to authorize the transaction, the Contractor shall procurethe Work, equipment, goods or service from some person or entity other than arelated party according to the terms of Article 10.

 

# **ARTICLE 8   COSTS NOT TO BE REIMBURSED**

**§ 8.1** The Cost of the Work shall not includethe items listed below:

 

**.1**                     Salaries and other compensation of the Contractor’spersonnel stationed at the Contractor’s principal office or offices other thanthe site office, except as specifically provided in Section 7.2. or as maybe provided in Article 15;

**.2**                     Expenses of the Contractor’s principal office andoffices other than the site office;

**.3**                     Overhead and general expenses, except as may beexpressly included in Article 7;

**.4**                     The Contractor’s capital expenses, including intereston the Contractor’s capital employed for the Work;

**.5**                     Except as provided in Section 7.7.3 of thisAgreement, costs due to the negligence or failure of the Contractor,Subcontractors and suppliers or anyone directly or indirectly employed by anyof them or for whose acts any of them may be liable to fulfill a specificresponsibility of the Contract;

**.6**                     Any cost not specifically and expressly described in Article 7;and

**.7**                     Costs, other than costs included in Change Ordersapproved by the Owner, that would cause the Guaranteed Maximum Price to beexceeded.

 

# **ARTICLE 9   DISCOUNTS, REBATES AND REFUNDS**

**§ 9.1**Cash discountsobtained on payments made by the Contractor shall accrue to the Owner if (1) beforemaking the payment, the Contractor included them in an Application for Paymentand received payment from the Owner, or (2) the Owner has deposited fundswith the Contractor with which to make payments; otherwise, cash discountsshall accrue to the Contractor. Trade discounts, rebates, refunds and amountsreceived from sales of surplus materials and equipment shall accrue to theOwner, and the Contractor shall make provisions so that they can be obtained.

 

**§ 9.2**Amounts thataccrue to the Owner in accordance with the provisions of Section 9.1 shallbe credited to the Owner as a deduction from the Cost of the Work.

 

# **ARTICLE 10   SUBCONTRACTS AND OTHER AGREEMENTS**

**§ 10.1**Those portions ofthe Work that the Contractor does not customarily perform with the Contractor’sown personnel shall be performed under subcontracts or by other appropriateagreements with the Contractor. The Owner may designate specific persons fromwhom, or entities from which, the Contractor shall obtain bids. The Contractorshall obtain bids from Subcontractors and from suppliers of materials orequipment fabricated especially for the Work and shall deliver such bids to theArchitect. The Owner shall then determine, with the advice of the Contractor 

 

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and the Architect, whichbids will be accepted. The Contractor shall not be required to contract withanyone to whom the Contractor has reasonable objection.

 

**§ 10.2**When a specificbidder (1) is recommended to the Owner by the Contractor; (2) isqualified to perform that portion of the Work; and (3) has submitted a bidthat conforms to the requirements of the Contract Documents withoutreservations or exceptions, but the Owner requires that another bid beaccepted, then the Contractor may require that a Change Order be issued toadjust the Guaranteed Maximum Price by the difference between the bid of theperson or entity recommended to the Owner by the Contractor and the amount ofthe subcontract or other agreement actually signed with the person or entitydesignated by the Owner.

 

**§ 10.3**Subcontracts orother agreements shall conform to the applicable payment provisions of thisAgreement, and shall not be awarded on the basis of cost plus a fee without theprior consent of the Owner. If the Subcontract is awarded on a cost-plus a feebasis, the Contractor shall provide in the Subcontract for the Owner to receivethe same audit rights with regard to the Subcontractor as the Owner receiveswith regard to the Contractor in Article 11, below.

 

# **ARTICLE 11   ACCOUNTING RECORDS**

The Contractor shall keepfull and detailed records and accounts related to the cost of the Work andexercise such controls as may be necessary for proper financial managementunder this Contract and to substantiate all costs incurred. The accounting andcontrol systems shall be satisfactory to the Owner. The Owner and the Owner’sauditors shall, during regular business hours and upon reasonable notice, beafforded access to, and shall be permitted to audit and copy, the Contractor’srecords and accounts, including complete documentation supporting accountingentries, books, correspondence, instructions, drawings, receipts, subcontracts,Subcontractor’s proposals, purchase orders, vouchers, memoranda and other datarelating to this Contract. The Contractor shall preserve these records for aperiod of three years after final payment, or for such longer period as may berequired by law.

 

# **ARTICLE 12   PAYMENTS**

**§ 12.1 PROGRESS PAYMENTS**

**§ 12.1.1**Based uponApplications for Payment submitted to the Architect by the Contractor andCertificates for Payment issued by the Architect, the Owner shall make progresspayments on account of the Contract Sum to the Contractor as provided below andelsewhere in the Contract Documents.

 

**§ 12.1.2**The periodcovered by each Application for Payment shall be one calendar month ending onthe last day of the month, or as follows:

 

«  »

** **

**§ 12.1.3**Provided that anApplication for Payment is received by the Architect not later than the «**30th**» day of a month, the Owner shall makepayment of the certified amount to the Contractor not later than the «**15th**» day of the «**next**» month. If an Application for Paymentis received by the Architect after the application date fixed above, paymentshall be made by the Owner not later than «**fifteen**»( «**15**» ) days after the Architectreceives the Application for Payment.  **The contract time will be automatically extended byone day for each day payment is delayed.**

*(Federal,state or local laws may require payment within a certain period of time.)*

 

**§ 12.1.4**With eachApplication for Payment, the Contractor shall submit payrolls, petty cashaccounts, receipted invoices or invoices with check vouchers attached, and anyother evidence required by the Owner or Architect to demonstrate that cashdisbursements already made by the Contractor on account of the Cost of the Workequal or exceed (1) progress payments already received by the Contractor;less (2) that portion of those payments attributable to the Contractor’sFee; plus (3) payrolls for the period covered by the present Applicationfor Payment.

 

**§ 12.1.5** Each Application for Payment shall bebased on the most recent schedule of values submitted by the Contractor inaccordance with the Contract Documents. The schedule of values shall allocatethe entire Guaranteed Maximum Price among the various portions of the Work,except that the Contractor’s Fee shall be shown as a single separate item. Theschedule of values shall be prepared in such form and supported by such data tosubstantiate its accuracy as the Architect may require. This schedule, unlessobjected to by the Architect, shall be used as a basis for reviewing theContractor’s Applications for Payment.

 

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**§ 12.1.6**Applications forPayment shall show the percentage of completion of each portion of the Work asof the end of the period covered by the Application for Payment. The percentageof completion shall be the lesser of (1) the percentage of that portion ofthe Work which has actually been completed; or (2) the percentage obtainedby dividing (a) the expense that has actually been incurred by theContractor on account of that portion of the Work for which the Contractor hasmade or intends to make actual payment prior to the next Application forPayment by (b) the share of the Guaranteed Maximum Price allocated to thatportion of the Work in the schedule of values.

 

**§ 12.1.7**Subject to otherprovisions of the Contract Documents, the amount of each progress payment shallbe computed as follows:

 

**.1**                     Take that portion of the Guaranteed Maximum Priceproperly allocable to completed Work as determined by multiplying thepercentage of completion of each portion of the Work by the share of theGuaranteed Maximum Price allocated to that portion of the Work in the scheduleof values. Pending final determination of cost to the Owner of changes in theWork, amounts not in dispute shall be included as provided in Section 7.3.9of AIA Document A201—2007;

**.2**                     Add that portion of the Guaranteed Maximum Priceproperly allocable to materials and equipment delivered and suitably stored atthe site for subsequent incorporation in the Work, or if approved in advance bythe Owner, suitably stored off the site at a location agreed upon in writing;

**.3**                     Add the Contractor’s Fee, less retainage of «**five**» ( «**5%**»).The Contractor’s Fee shall be computed upon the Cost of the Work at the ratestated in Section 5.1.1 or, if the Contractor’s Fee is stated as a fixedsum in that Section, shall be an amount that bears the same ratio to thatfixed-sum fee as the Cost of the Work bears to a reasonable estimate of theprobable Cost of the Work upon its completion;

**.4**                     Subtract retainage of «**five**» ( «**5%**» )from that portion of the Work that the Contractor self-performs;

**.5**                     Subtract the aggregate of previous payments made bythe Owner;

**.6**                     Subtract the shortfall, if any, indicated by theContractor in the documentation required by Section 12.1.4 to substantiateprior Applications for Payment, or resulting from errors subsequentlydiscovered by the Owner’s auditors in such documentation; and

**.7**                     Subtract amounts, if any, for which the Architect haswithheld or nullified a Certificate for Payment as provided in Section 9.5of AIA Document A201—2007.

 

**§ 12.1.8**The Owner and theContractor shall agree upon a (1) mutually acceptable procedure for reviewand approval of payments to Subcontractors and (2) the percentage ofretainage held on Subcontracts, and the Contractor shall execute subcontractsin accordance with those agreements.

 

**§ 12.1.9**In taking actionon the Contractor’s Applications for Payment, the Architect shall be entitledto rely on the accuracy and completeness of the information furnished by theContractor and shall not be deemed to represent that the Architect has made adetailed examination, audit or arithmetic verification of the documentationsubmitted in accordance with Section 12.1.4 or other supporting data; thatthe Architect has made exhaustive or continuous on-site inspections; or thatthe Architect has made examinations to ascertain how or for what purposes theContractor has used amounts previously paid on account of the Contract. Suchexaminations, audits and verifications, if required by the Owner, will beperformed by the Owner’s auditors acting in the sole interest of the Owner.

 

**§ 12.2 FINAL PAYMENT**

**§ 12.2.1**Final payment,constituting the entire unpaid balance of the Contract Sum, shall be made bythe Owner to the Contractor when

 

**.1**                     the Contractor has fully performed the Contract exceptfor the Contractor’s responsibility to correct Work as provided in Section 12.2.2of AIA Document A201—2007, and to satisfy other requirements, if any, whichextend beyond final payment;

**.2**                     the Contractor has submitted a final accounting forthe Cost of the Work and a final Application for Payment; and

**.3**                     a final Certificate for Payment has been issued by theArchitect.

 

**§ 12.2.2**The Owner’sauditors will review and report in writing on the Contractor’s final accountingwithin 30 days after delivery of the final accounting to the Architect by theContractor. Based upon such Cost of the Work as the Owner’s auditors report tobe substantiated by the Contractor’s final accounting, and provided the otherconditions of Section 12.2.1 have been met, the Architect will, withinseven days after receipt of the written report of the Owner’s auditors, eitherissue to the Owner a final Certificate for Payment with a copy to theContractor, or notify

 

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the Contractor and Ownerin writing of the Architect’s reasons for withholding a certificate as providedin Section 9.5.1 of the AIA Document A201—2007. The time periods stated inthis Section 12.2.2 supersede those stated in Section 9.4.1 of theAIA Document A201—2007. The Architect is not responsible for verifying theaccuracy of the Contractor’s final accounting.

 

**§ 12.2.3**If the Owner’sauditors report the Cost of the Work as substantiated by the Contractor’s finalaccounting to be less than claimed by the Contractor, the Contractor shall beentitled to request mediation of the disputed amount without seeking an initialdecision pursuant to Section 15.2 of A201—2007. A request for mediationshall be made by the Contractor within 30 days after the Contractor’s receiptof a copy of the Architect’s final Certificate for Payment. Failure to requestmediation within this 30-day period shall result in the substantiated amountreported by the Owner’s auditors becoming binding on the Contractor. Pending afinal resolution of the disputed amount, the Owner shall pay the Contractor theamount certified in the Architect’s final Certificate for Payment.

 

**§ 12.2.4** The Owner’s final payment to theContractor shall be made no later than 30 days after the issuance of theArchitect’s final Certificate for Payment, or as follows:

 

**Owner torelease all retainage held upon completion and acceptance by Owner.**

** **

**§ 12.2.5**If, subsequent tofinal payment and at the Owner’s request, the Contractor incurs costs describedin Article 7 and not excluded by Article 8 to correct defective ornonconforming Work, the Owner shall reimburse the Contractor such costs and theContractor’s Fee applicable thereto on the same basis as if such costs had beenincurred prior to final payment, but not in excess of the Guaranteed MaximumPrice. If the Contractor has participated in savings as provided in Section 5.2,the amount of such savings shall be recalculated and appropriate credit givento the Owner in determining the net amount to be paid by the Owner to theContractor.

 

# **ARTICLE 13   DISPUTE RESOLUTION**

**§ 13.1INITIAL DECISION MAKER**

The Architect will serveas Initial Decision Maker pursuant to Section 15.2 of AIA Document A201—2007,unless the parties appoint below another individual, not a party to theAgreement, to serve as Initial Decision Maker.

*(If theparties mutually agree, insert the name, address and other contact informationof the Initial Decision Maker, if other than the Architect.)*

 

**ThomasLyles**

**TidelandsBank**

**PostOffice Box 1087**

**Mt.Pleasant, SC 29465**

**E-Mail:tlyles@tidelandsbank.com**

**Phone:843-284-1195**

**Fax:843-284-1187**

** **

**§ 13.2BINDING DISPUTE RESOLUTION**

 

For any Claim subject to,but not resolved by mediation pursuant to Section 15.3 of AIA DocumentA201—2007, the method of binding dispute resolution shall be as follows:

*(Checkthe appropriate box. If the Owner and Contractor do not select a method ofbinding dispute resolution below, or do not subsequently agree in writing to abinding dispute resolution method other than litigation, Claims will be resolvedby litigation in a court of competent jurisdiction.)*

 

[ **«X »** ]        Arbitration pursuant to Section 15.4of AIA Document A201—2007

 

[ **«  »** ]          Litigationin a court of competent jurisdiction

 

[ **«  »** ]          Other*(Specify)*

 

«  »

 

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# **ARTICLE 14   TERMINATION OR SUSPENSION**

**§ 14.1** Subject to the provisions of Section 14.2below, the Contract may be terminated by the Owner or the Contractor asprovided in Article 14 of AIA Document A201—2007.

 

**§ 14.2**If the Ownerterminates the Contract for cause as provided in Article 14 of AIADocument A201—2007, the amount, if any, to be paid to the Contractor under Section 14.2.4of AIA Document A201—2007 shall not cause the Guaranteed Maximum Price to beexceeded, nor shall it exceed an amount calculated as follows:

 

**.1**                     Take the Cost of the Work incurred by the Contractorto the date of termination;

**.2**                     Add the Contractor’s Fee computed upon the Cost of theWork to the date of termination at the rate stated in Section 5.1.1 or, ifthe Contractor’s Fee is stated as a fixed sum in that Section, an amount thatbears the same ratio to that fixed-sum Fee as the Cost of the Work at the timeof termination bears to a reasonable estimate of the probable Cost of the Workupon its completion; and

**.3**                     Subtract the aggregate of previous payments made bythe Owner.

 

**§ 14.3** The Owner shall also pay the Contractorfair compensation, either by purchase or rental at the election of the Owner,for any equipment owned by the Contractor that the Owner elects to retain andthat is not otherwise included in the Cost of the Work under Section 14.2.1.To the extent that the Owner elects to take legal assignment of subcontractsand purchase orders (including rental agreements), the Contractor shall, as acondition of receiving the payments referred to in this Article 14,execute and deliver all such papers and take all such steps, including thelegal assignment of such subcontracts and other contractual rights of theContractor, as the Owner may require for the purpose of fully vesting in theOwner the rights and benefits of the Contractor under such subcontracts orpurchase orders.

 

**§ 14.4**The Work may besuspended by the Owner as provided in Article 14 of AIA Document A201—2007;in such case, the Guaranteed Maximum Price and Contract Time shall be increasedas provided in Section 14.3.2 of AIA Document A201—2007, except that theterm “profit” shall be understood to mean the Contractor’s Fee as described inSections 5.1.1 and Section 6.4 of this Agreement.

 

# **ARTICLE 15   MISCELLANEOUS PROVISIONS**

**§ 15.1**Where referenceis made in this Agreement to a provision of AIA Document A201—2007 or anotherContract Document, the reference refers to that provision as amended orsupplemented by other provisions of the Contract Documents.

 

**§ 15.2**Payments due andunpaid under the Contract shall bear interest from the date payment is due atthe rate stated below, or in the absence thereof, at the legal rate prevailingfrom time to time at the place where the Project is located.

*(Insertrate of interest agreed upon, if any.)*

 

**12%annual rate**

** **

**§ 15.3** The Owner’s representative:

*(Name,address and other information.)*

 

**ThomasLyles**

**TidelandsBank**

**PostOffice Box 1087**

**Mt.Pleasant, SC 29465**

**E-Mail:tlyles@tidelandsbank.com**

**Phone:843-284-1195**

**Fax:843-284-1187**

 

**§ 15.4** The Contractor’s representative:

*(Name,address and other information.)*

 

**GeneGarrett**

**HillConstruction**

**295Seven Farms Drive, Suite 301**

 

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**Charleston,SC 29492**

**E-Mail:gene@hillcon.com**

**Phone:843-971-7312**

**Fax:843-884-7532**

**Mobile:843-345-9374**

 

**§ 15.5** Neither the Owner’s nor the Contractor’srepresentative shall be changed without ten days’ written notice to the otherparty.

 

**§ 15.6** Other provisions:

 

**14.6.1OTHER LABOR COSTS TO BE REIMBURSED**

 

**14.6.1.1The cost of the superintendent’s incentive program per Attachment A.**

 

**14.6.1.2The cost of the project manager’s time associated in managing the project shallbe a cost to the project.**

 

# **ARTICLE 16   ENUMERATION OF CONTRACT DOCUMENTS**

**§ 16.1**The ContractDocuments, except for Modifications issued after execution of this Agreement,are enumerated in the sections below.

 

**§ 16.1.1**The Agreement isthis executed AIA Document A102—2007, Standard Form of Agreement BetweenOwner and Contractor.

 

**§ 16.1.2**The GeneralConditions are AIA Document A201—2007, General Conditions of the Contract forConstruction.

 

**§ 16.1.3**The Supplementaryand other Conditions of the Contract:

 
| **Document** | ** ** | **Title** | ** ** | **Date** | ** ** | **Pages** | ** ** |
|--------------|------------|-----------|------------|----------|------------|-----------|------------|
|         |       |      |       |     |       |      |       |
|         |       |      |       |     |       |      |       |
|         |       |      |       |     |       |      |       |

 

**§ 16.1.4**TheSpecifications:

*(Eitherlist the Specifications here or refer to an exhibit attached to thisAgreement.)*

 

**SEEATTACHMENT B**

 
| **Section** | ** ** | **Title** | ** ** | **Date** | ** ** | **Pages** | ** ** |
|-------------|------------|-----------|------------|----------|------------|-----------|------------|
|        |       |      |       |     |       |      |       |
|        |       |      |       |     |       |      |       |
|        |       |      |       |     |       |      |       |

 

**§ 16.1.5**The Drawings:

*(Eitherlist the Drawings here or refer to an exhibit attached to this Agreement.)*

 

**SEEATTACHMENT C**

 
| **Number** | ** ** | **Title** | ** ** | **Date** | ** ** |
|------------|------------|-----------|------------|----------|------------|
|       |       |      |       |     |       |
|       |       |      |       |     |       |
|       |       |      |       |     |       |

 

**§ 16.1.6**The Addenda, ifany:

 
| **Number** | ** ** | **Date**              | ** ** | **Pages** | ** ** |
|------------|------------|-----------------------|------------|-----------|------------|
| **1**      | ** ** | **OCTOBER  15, 2009** | ** ** | **4**     | ** ** |
| **2**      | ** ** | **OCTOBER  23, 2009** | ** ** | **3**     | ** ** |
| **3**      | ** ** | **OCTOBER  30, 2009** |       | 1         |       |

 

Portions of Addendarelating to bidding requirements are not part of the Contract Documents unlessthe bidding requirements are also enumerated in this Article 16.

 

**§ 16.1.7**Additionaldocuments, if any, forming part of the Contract Documents:

 

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**.1**                     AIA Document E201TM—2007, Digital Data ProtocolExhibit, if completed by the parties, or the following:

 

«  »

 

**.2**                     Other documents, if any, listed below:

*(List here any additional documents that are intended toform part of the Contract Documents. AIA Document A201—2007 provides thatbidding requirements such as advertisement or invitation to bid, Instructionsto Bidders, sample forms and the Contractor’s bid are not part of the ContractDocuments unless enumerated in this Agreement. They should be listed here onlyif intended to be part of the Contract Documents.)*

 

**Attachment A — Incentive Bonus for Superintendent**

**Attachment B — Specification List dated November 6, 2009**

**Attachment C — Drawing List dated November 6, 2009**

**Attachment D — Case Study dated November 5, 2009**

**Attachment E — Contract Clarifications dated November 15,2009**

 

# **ARTICLE 17   INSURANCE AND BONDS**

The Contractor shallpurchase and maintain insurance and provide bonds as set forth in Article 11of AIA Document A201—2007.

*(Statebonding requirements, if any, and limits of liability for insurance required inArticle 11 of AIA Document A201—2007.)*

 
| **Type of  insurance or bond** | ** ** | **Limit of  liability or bond amount ($ 0.00)** |
|--------------------------------|------------|------------------------------------------------------|
|                           |       |                                                 |
|                           |       |                                                 |
|                           |       |                                                 |

 

This Agreement entered into as of the day and year firstwritten above.

 

 
| /s/ Thomas H. Lyles        |       | /s/ John W. Crane, Jr.                |
|----------------------------|------------|--------------------------------------------|
| **OWNER***(Signature)*     | * *   | **CONTRACTOR***(Signature)*                |
| ** **                 | ** ** | ** **                                 |
| Thomas H. Lyles, EVP       |       | **John W. Crane, Jr.**

**President** |
| *(Printed name and title)* | * *   | *(Printed name and title)*                 |

 

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