Exhibit 10.28


 


AIA® Document A102TM — 2007


 


Standard Form of Agreement Between Owner and Contractor


where
the basis of payment is the Cost of the Work Plus a Fee with a Guaranteed
Maximum Price


 


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


(In
words, indicate day, month and year.)


 


BETWEEN the Owner:


(Name,
legal status, address and other information)


 


Tidelands
Bank


Post
Office Box 1087


Mt.
Pleasant, SC 29465


«  »


 


and the Contractor:


(Name,
legal status, address and other information)


 


«Hill
Construction »


«295
Seven Farms Drive, Suite 301»


«Charleston,
SC 29492 »


«  »


 


for the following
Project:


(Name,
location and detailed description)


 


Tidelands
Bank Executive Office Building


850
Lowcountry Blvd.


Mt.
Pleasant, SC 29464


 


The Architect:


(Name,
legal status, address and other information)


 


Glick/Boehm &
Associates, Inc.


493 King
Street, Suite 100


Charleston,
SC 29403


 


«  »


«  »


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


 


The Owner and Contractor
agree as follows.


 


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.


 


This
document has important legal consequences. Consultation with an attorney is
encouraged with respect to its completion or modification.


 


This
document is not intended for use in competitive bidding.


 


AIA
Document A201TM—2007, General Conditions of the Contract for Construction, is
adopted in this document by reference. Do not use with other general conditions
unless this document is modified.


 


ELECTRONIC COPYING of any portion of this AIA® Document to another electronic file is
prohibited and constitutes a violation of copyright laws as set forth in the
footer of this document.


 


AIA Document A102TM — 2007 (formerly A111TM — 1997). Copyright ©
1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987, 1997 and 2007 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 draft was produced by
AIA software at 13:46:21 on 08/25/2009 under Order No.9771344530_1 which
expires on 04/29/2010, and is not for resale.


	
  User Notes:

  	
  (1848791117)

  



 


1

















 


TABLE OF ARTICLES


 


1                                         THE CONTRACT DOCUMENTS


 


2                                         THE WORK OF THIS
CONTRACT


 


3                                         RELATIONSHIP OF THE
PARTIES


 


4                                         DATE OF COMMENCEMENT AND
SUBSTANTIAL COMPLETION


 


5                                         CONTRACT SUM


 


6                                         CHANGES IN THE WORK


 


7                                         COSTS TO BE REIMBURSED


 


8                                         COSTS NOT TO BE
REIMBURSED


 


9                                         DISCOUNTS, REBATES AND
REFUNDS


 


10                                  SUBCONTRACTS AND OTHER
AGREEMENTS


 


11                                  ACCOUNTING RECORDS


 


12                                  PAYMENTS


 


13                                  DISPUTE RESOLUTION


 


14                                  TERMINATION OR
SUSPENSION


 


15                                  MISCELLANEOUS PROVISIONS


 


16                                  ENUMERATION OF CONTRACT
DOCUMENTS


 


17                                  INSURANCE AND BONDS


 


ARTICLE 1   THE CONTRACT DOCUMENTS


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


 


ARTICLE 2   THE WORK OF THIS CONTRACT


The Contractor shall
fully execute the Work described in the Contract Documents, except as
specifically indicated in the Contract Documents to be the responsibility of
others.


 


ARTICLE 3   RELATIONSHIP OF THE PARTIES


The Contractor accepts
the relationship of trust and confidence established by this Agreement and
covenants with the Owner to cooperate with the Architect and exercise the
Contractor’s skill and judgment in furthering the interests of the Owner; to
furnish efficient business administration and supervision; to furnish at all
times an adequate supply of workers and materials; and to perform the Work in
an expeditious and economical manner consistent with the Owner’s interests. The
Owner agrees to furnish and approve, in a timely manner, information required
by the Contractor and to make payments to the Contractor in accordance with the
requirements of the Contract Documents.


 


2

















 


ARTICLE 4   DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION


§ 4.1
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
to proceed 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.)


 


The Date
of Commencement is Date of Permit.


 


If, prior to commencement
of the Work, the Owner requires time to file mortgages and other security
interests, the Owner’s time requirement shall be as follows:


 


«  »


 


§ 4.2
The Contract Time
shall be measured from the date of commencement.


 


§ 4.3
The Contractor
shall achieve Substantial Completion of the entire 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. If appropriate, insert requirements
for earlier Substantial Completion of certain portions of the Work.)


 


October 15,
2010


 


	
  Portion of Work

  	
   

  	
  Substantial
  Completion date

  
	
  Core &
  Shell

  	
   

  	
  September 15,
  2010

  
	
  1st Floor Tenant Space

  	
   

  	
  September 15,
  2010

  
	
  2nd Floor Executive Space

  	
   

  	
  October 15,
  2010

  



 


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


 


(Insert
provisions, if any, for liquidated damages relating to failure to achieve
Substantial Completion on time, or for bonus payments for early completion of
the Work.)


 


«  »


 


ARTICLE 5   CONTRACT SUM


§ 5.1 The Owner shall pay the Contractor the
Contract 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 the
Contractor’s Fee.


 


§ 5.1.1
The Contractor’s
Fee:


(State
a lump sum, percentage of Cost of the Work or other provision for determining
the Contractor’s Fee.)


 


Contractor’s
fee established at 6.7 percent (6.7%) of the cost of the work.


 


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


 


«  »


 


§ 5.1.3
Limitations, if
any, on a Subcontractor’s overhead and profit for increases in the cost of its
portion of the Work:


 


«  »


 


§ 5.1.4
Rental rates for
Contractor-owned equipment shall not exceed « 
» ( «  » ) of the standard rate
paid at the place of the Project.


 


§ 5.1.5
Unit prices, if
any:


(Identify
and state the unit price; state the quantity limitations, if any, to which the
unit price will be applicable.)


 


3

















 


	
  Item

  	
   

  	
  Units
  and Limitations

  	
   

  	
  Price
  Per Unit ($ 0.00)

  
	
  CY for
  removing unsuitable soil  & for importing
  good fill

  	
   

  	
  CY

  	
   

  	
  $25 /
  CY

  



 


§ 5.2
GUARANTEED MAXIMUM PRICE


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


(Insert
specific provisions if the Contractor is to participate in any savings.)


 


Savings
Split to be determined per table below:


 


	
  Tidelands
  Bank

  	
   

  	
  Seventy
  percent (70%)

  
	
  Hill
  Construction

  	
   

  	
  Thirty
  percent (30%)

  



 


§ 5.2.2
The Guaranteed
Maximum Price is based on the following alternates, if any, which are described
in the Contract Documents and are hereby accepted by the Owner:


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


 


«  »


 


§ 5.2.3
Allowances included
in the Guaranteed Maximum Price, if any:


(Identify
allowance 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, if
any, on which the Guaranteed Maximum Price is based:


 


«  »


 


§ 5.2.5 To the extent that the Drawings and
Specifications are anticipated to require further development by the Architect,
the Contractor has provided in the Guaranteed Maximum Price for such further
development consistent with the Contract Documents and reasonably inferable
therefrom.  Such further development does
not include such things as changes in scope, systems, kinds and quality of
materials, finishes or equipment, all of which, if required, shall be incorporated
by Change Order.


 


ARTICLE 6   CHANGES IN THE WORK


§ 6.1
Adjustments to
the Guaranteed Maximum Price on account of changes in the Work may be
determined by any of the methods listed in Section 7.3.3 of AIA Document
A201—2007, General Conditions of the Contract for Construction.


 


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


 


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


 


4

















 


§ 6.4
If no specific
provision is made in Article 5 for adjustment of the Contractor’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 provisions of Article 5
will cause substantial inequity to the Owner or Contractor, the Contractor’s
Fee shall be equitably adjusted on the same basis that was used to establish
the Fee for the original Work, and the Guaranteed Maximum Price shall be
adjusted accordingly.


 


ARTICLE 7   COSTS TO BE REIMBURSED


§ 7.1
COST OF THE WORK


§ 7.1.1
The term Cost of
the Work shall mean costs necessarily incurred by the Contractor 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 7.


 


§ 7.1.2
Where any cost is
subject to the Owner’s prior approval, the Contractor shall obtain this
approval prior to incurring the cost. The parties shall endeavor to identify
any such costs prior to executing this Agreement.


 


§ 7.2 LABOR COSTS


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


 


§ 7.2.2
Wages or salaries
of the Contractor’s supervisory and administrative personnel when stationed at
the site with the Owner’s prior approval.


(If it
is intended that the wages or salaries of certain personnel stationed at the
Contractor’s principal or other offices shall be included in the Cost of the
Work, identify in Article 15, the personnel to be included, whether for
all or only part of their time, and the rates at which their time will be
charged to the Work.)


 


§ 7.2.3
Wages and
salaries of the Contractor’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.


 


§ 7.2.4
Costs paid or
incurred by the Contractor 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
7.2.1 through 7.2.3.


 


§ 7.2.5
Bonuses, profit
sharing, incentive compensation and any other discretionary payments paid to
anyone hired by the Contractor or paid to any Subcontractor or vendor, with the
Owner’s prior approval.


 


§ 7.3 SUBCONTRACT COSTS


Payments made by the
Contractor to Subcontractors in accordance with the requirements of the
subcontracts.


 


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


§ 7.4.1
Costs, including
transportation and storage, of materials and equipment incorporated or to be
incorporated in the completed construction.


 


§ 7.4.2
Costs of
materials described in the preceding Section 7.4.1 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 Contractor. Any amounts
realized from such sales shall be credited to the Owner as a deduction from the
Cost of the Work.


 


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


§ 7.5.1
Costs of
transportation , 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
Contractor at the site and fully consumed in the performance of the Work. Costs
of materials, supplies, temporary facilities, machinery, equipment and tools
that are not fully consumed shall be based on the cost or value of the item at
the time it is first used on the Project site less the value of the item when
it is no longer used at the Project site. Costs for items not fully consumed by
the Contractor shall mean fair market value.


 


5

















 


§ 7.5.2
Rental charges
for temporary facilities, machinery, equipment and hand tools not customarily
owned by construction workers that are provided by the Contractor at the site
and costs of transportation, installation, minor repairs, dismantling and
removal. The total rental cost of any Contractor-owned item may not exceed the
purchase price of any comparable item. Rates of Contractor-owned equipment and
quantities of equipment shall be subject to the Owner’s prior approval.


 


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


 


§ 7.5.4
Costs 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.


 


§ 7.5.5
Costs of
materials and equipment suitably stored off the site at a mutually acceptable
location, subject to the Owner’s prior approval.


 


§ 7.6 MISCELLANEOUS COSTS


§ 7.6.1
Premiums for that
portion of insurance and bonds required by the Contract Documents that can be
directly attributed to this Contract. Self-insurance for either full or partial
amounts of the coverages required by the Contract Documents, with the Owner’s
prior approval.


 


§ 7.6.2
Sales, use or
similar taxes imposed by a governmental authority that are related to the Work
and for which the Contractor is liable.


 


§ 7.6.3
Fees and
assessments for the building permit and for other permits, licenses and
inspections for which the Contractor is required by the Contract Documents to
pay.


 


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


 


§ 7.6.5
Royalties and
license fees paid for the use of a particular design, process or product
required by the Contract Documents; the cost of defending suits or claims for
infringement of patent rights arising from such requirement of the Contract
Documents; and payments made in accordance with legal judgments against the
Contractor 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 Contractor’s Fee or
subject to the Guaranteed Maximum Price. If such royalties, fees and costs are
excluded by the last sentence of Section 3.17 of AIA Document A201—2007 or
other provisions of the Contract Documents, then they shall not be included in
the Cost of the Work.


 


§ 7.6.6
Costs for
electronic equipment and software, directly related to the Work with the Owner’s
prior approval.


 


§ 7.6.7
Deposits lost for
causes other than the Contractor’s negligence or failure to fulfill a specific
responsibility in the Contract Documents.


 


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


 


§ 7.6.9
Subject to the
Owner’s prior approval, expenses incurred in accordance with the Contractor’s
standard written personnel policy for relocation and temporary living
allowances of the Contractor’s personnel required for the Work.


 


§ 7.6.10 That portion of the reasonable expenses
of the Contractor’s supervisory or administrative personnel incurred while
traveling in discharge of duties connected with the Work.


 


§ 7.7
OTHER COSTS AND EMERGENCIES


§ 7.7.1
Other costs
incurred in the performance of the Work if, and to the extent, approved in advance
in writing by the Owner.


 


6
















 


§ 7.7.2
Costs 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 10.4
of AIA Document A201—2007.


 


§ 7.7.3
Costs of
repairing or correcting damaged or nonconforming Work executed by the
Contractor, Subcontractors or suppliers, provided that such damaged or
nonconforming Work was not caused by negligence or failure to fulfill a
specific responsibility of the Contractor and only to the extent that the cost
of repair or correction is not recovered by the Contractor from insurance,
sureties, Subcontractors, suppliers, or others.


 


§ 7.8
RELATED PARTY TRANSACTIONS


§ 7.8.1 For purposes of Section 7.8, the
term “related party” shall mean a parent, subsidiary, affiliate or other entity
having common ownership or management with the Contractor; any entity in which
any stockholder in, or management employee of, the Contractor owns any interest
in excess of ten percent in the aggregate; or any person or entity which has
the right to control the business or affairs of the Contractor. The term “related
party” includes any member of the immediate family of any person identified
above.


 


§ 7.8.2 If any of the costs to be reimbursed
arise from a transaction between the Contractor and a related party, the
Contractor shall notify the Owner of the specific nature of the contemplated
transaction, including the identity of the related party and the anticipated
cost to be incurred, before any such transaction is consummated or cost
incurred. If the Owner, after such notification, authorizes the proposed
transaction, then the cost incurred shall be included as a cost to be
reimbursed, and the Contractor shall procure the Work, equipment, goods or
service 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 procure
the Work, equipment, goods or service from some person or entity other than a
related party according to the terms of Article 10.


 


ARTICLE 8   COSTS NOT TO BE REIMBURSED


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


 


.1                     Salaries and other compensation of the Contractor’s
personnel stationed at the Contractor’s principal office or offices other than
the site office, except as specifically provided in Section 7.2. or as may
be provided in Article 15;


.2                     Expenses of the Contractor’s principal office and
offices other than the site office;


.3                     Overhead and general expenses, except as may be
expressly included in Article 7;


.4                     The Contractor’s capital expenses, including interest
on the Contractor’s capital employed for the Work;


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


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


.7                     Costs, other than costs included in Change Orders
approved by the Owner, that would cause the Guaranteed Maximum Price to be
exceeded.


 


ARTICLE 9   DISCOUNTS, REBATES AND REFUNDS


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


 


§ 9.2
Amounts that
accrue to the Owner in accordance with the provisions of Section 9.1 shall
be credited to the Owner as a deduction from the Cost of the Work.


 


ARTICLE 10   SUBCONTRACTS AND OTHER AGREEMENTS


§ 10.1
Those portions of
the Work that the Contractor does not customarily perform with the Contractor’s
own personnel shall be performed under subcontracts or by other appropriate
agreements with the Contractor. The Owner may designate specific persons from
whom, or entities from which, the Contractor shall obtain bids. The Contractor
shall obtain bids from Subcontractors and from suppliers of materials or
equipment fabricated especially for the Work and shall deliver such bids to the
Architect. The Owner shall then determine, with the advice of the Contractor 


 


7

















 


and the Architect, which
bids will be accepted. The Contractor shall not be required to contract with
anyone to whom the Contractor has reasonable objection.


 


§ 10.2
When a specific
bidder (1) is recommended to the Owner by the Contractor; (2) is
qualified to perform that portion of the Work; and (3) has submitted a bid
that conforms to the requirements of the Contract Documents without
reservations or exceptions, but the Owner requires that another bid be
accepted, then the Contractor may require that a Change Order be issued to
adjust the Guaranteed Maximum Price by the difference between the bid of the
person or entity recommended to the Owner by the Contractor and the amount of
the subcontract or other agreement actually signed with the person or entity
designated by the Owner.


 


§ 10.3
Subcontracts or
other agreements shall conform to the applicable payment provisions of this
Agreement, and shall not be awarded on the basis of cost plus a fee without the
prior consent of the Owner. If the Subcontract is awarded on a cost-plus a fee
basis, the Contractor shall provide in the Subcontract for the Owner to receive
the same audit rights with regard to the Subcontractor as the Owner receives
with regard to the Contractor in Article 11, below.


 


ARTICLE 11   ACCOUNTING RECORDS


The Contractor shall keep
full and detailed records and accounts related to the cost of the Work and
exercise such controls as may be necessary for proper financial management
under this Contract and to substantiate all costs incurred. The accounting and
control systems shall be satisfactory to the Owner. The Owner and the Owner’s
auditors shall, during regular business hours and upon reasonable notice, be
afforded access to, and shall be permitted to audit and copy, the Contractor’s
records and accounts, including complete documentation supporting accounting
entries, books, correspondence, instructions, drawings, receipts, subcontracts,
Subcontractor’s proposals, purchase orders, vouchers, memoranda and other data
relating to this Contract. The Contractor shall preserve these records for a
period of three years after final payment, or for such longer period as may be
required by law.


 


ARTICLE 12   PAYMENTS


§ 12.1 PROGRESS PAYMENTS


§ 12.1.1
Based upon
Applications for Payment submitted to the Architect by the Contractor and
Certificates for Payment issued by the Architect, the Owner shall make progress
payments on account of the Contract Sum to the Contractor as provided below and
elsewhere in the Contract Documents.


 


§ 12.1.2
The period
covered by each Application for Payment shall be one calendar month ending on
the last day of the month, or as follows:


 


«  »


 


§ 12.1.3
Provided that an
Application for Payment is received by the Architect not later than the «30th» day of a month, the Owner shall make
payment of the certified amount to the Contractor not later than the «15th» day of the «next» month. If an Application for Payment
is received by the Architect after the application date fixed above, payment
shall be made by the Owner not later than «fifteen»
( «15» ) days after the Architect
receives the Application for Payment.  The contract time will be automatically extended by
one 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 each
Application for Payment, the Contractor shall submit payrolls, petty cash
accounts, receipted invoices or invoices with check vouchers attached, and any
other evidence required by the Owner or Architect to demonstrate that cash
disbursements already made by the Contractor on account of the Cost of the Work
equal or exceed (1) progress payments already received by the Contractor;
less (2) that portion of those payments attributable to the Contractor’s
Fee; plus (3) payrolls for the period covered by the present Application
for Payment.


 


§ 12.1.5 Each Application for Payment shall be
based on the most recent schedule of values submitted by the Contractor in
accordance with the Contract Documents. The schedule of values shall allocate
the 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. The
schedule of values shall be prepared in such form and supported by such data to
substantiate its accuracy as the Architect may require. This schedule, unless
objected to by the Architect, shall be used as a basis for reviewing the
Contractor’s Applications for Payment.


 


8

















 


§ 12.1.6
Applications for
Payment 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
Contractor on account of that portion of the Work for which the Contractor 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.


 


§ 12.1.7
Subject to other
provisions of the Contract 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 7.3.9
of AIA Document A201—2007;


.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 Contractor’s Fee, less retainage of «five» ( «5%»
).The Contractor’s Fee shall be computed upon the Cost of the Work at the rate
stated in Section 5.1.1 or, if the Contractor’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 bears to a reasonable estimate of the
probable 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 by
the Owner;


.6                     Subtract the shortfall, if any, indicated by the
Contractor in the documentation required by Section 12.1.4 to substantiate
prior Applications for Payment, or resulting from errors subsequently
discovered by the Owner’s auditors in such documentation; and


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


 


§ 12.1.8
The Owner and the
Contractor shall agree upon a (1) mutually acceptable procedure for review
and approval of payments to Subcontractors and (2) the percentage of
retainage held on Subcontracts, and the Contractor shall execute subcontracts
in accordance with those agreements.


 


§ 12.1.9
In taking action
on the Contractor’s Applications for Payment, the Architect shall be entitled
to rely on the accuracy and completeness of the information furnished by the
Contractor and shall not be deemed to represent that the Architect has made a
detailed examination, audit or arithmetic verification of the documentation
submitted in accordance with Section 12.1.4 or other supporting data; that
the Architect has made exhaustive or continuous on-site inspections; or that
the Architect has made examinations to ascertain how or for what purposes the
Contractor has used amounts previously paid on account of the Contract. Such
examinations, audits and verifications, if required by the Owner, will be
performed 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 by
the Owner to the Contractor when


 


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


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


.3                     a final Certificate for Payment has been issued by the
Architect.


 


§ 12.2.2
The Owner’s
auditors will review and report in writing on the Contractor’s final accounting
within 30 days after delivery of the final accounting to the Architect by the
Contractor. Based upon such Cost of the Work as the Owner’s auditors report to
be substantiated by the Contractor’s final accounting, and provided the other
conditions of Section 12.2.1 have been met, the Architect will, within
seven days after receipt of the written report of the Owner’s auditors, either
issue to the Owner a final Certificate for Payment with a copy to the
Contractor, or notify


 


9

















 


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


 


§ 12.2.3
If the Owner’s
auditors report the Cost of the Work as substantiated by the Contractor’s final
accounting to be less than claimed by the Contractor, the Contractor shall be
entitled to request mediation of the disputed amount without seeking an initial
decision pursuant to Section 15.2 of A201—2007. A request for mediation
shall be made by the Contractor within 30 days after the Contractor’s receipt
of a copy of the Architect’s final Certificate for Payment. Failure to request
mediation within this 30-day period shall result in the substantiated amount
reported by the Owner’s auditors becoming binding on the Contractor. Pending a
final resolution of the disputed amount, the Owner shall pay the Contractor the
amount certified in the Architect’s final Certificate for Payment.


 


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


 


Owner to
release all retainage held upon completion and acceptance by Owner.


 


§ 12.2.5
If, subsequent to
final payment and at the Owner’s request, the Contractor incurs costs described
in Article 7 and not excluded by Article 8 to correct defective or
nonconforming Work, the Owner shall reimburse the Contractor such costs and the
Contractor’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 the Contractor has participated in savings as provided in Section 5.2,
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
Contractor.


 


ARTICLE 13   DISPUTE RESOLUTION


§ 13.1
INITIAL DECISION MAKER


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


(If the
parties mutually agree, insert the name, address and other contact information
of the Initial Decision Maker, if other than the Architect.)


 


Thomas
Lyles


Tidelands
Bank


Post
Office Box 1087


Mt.
Pleasant, SC 29465


E-Mail:
tlyles@tidelandsbank.com


Phone:
843-284-1195


Fax:
843-284-1187


 


§ 13.2
BINDING DISPUTE RESOLUTION


 


For any Claim subject to,
but not resolved by mediation pursuant to Section 15.3 of AIA Document
A201—2007, the method of binding dispute resolution shall be as follows:


(Check
the appropriate box. If the Owner and Contractor do not select a method of
binding dispute resolution below, or do not subsequently agree in writing to a
binding dispute resolution method other than litigation, Claims will be resolved
by litigation in a court of competent jurisdiction.)


 


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


 


[ «  » ]          Litigation
in a court of competent jurisdiction


 


[ «  » ]          Other
(Specify)


 


«  »


 


10

















 


ARTICLE 14   TERMINATION OR SUSPENSION


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


 


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


 


.1                     Take the Cost of the Work incurred by the Contractor
to the date of termination;


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


.3                     Subtract the aggregate of previous payments made by
the Owner.


 


§ 14.3 The Owner shall also pay the Contractor
fair 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 and
that 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 subcontracts
and purchase orders (including rental agreements), the Contractor shall, as a
condition of receiving the payments referred to in this Article 14,
execute and deliver all such papers and take all such steps, including the
legal assignment of such subcontracts and other contractual rights of the
Contractor, as the Owner may require for the purpose of fully vesting in the
Owner the rights and benefits of the Contractor under such subcontracts or
purchase orders.


 


§ 14.4
The Work may be
suspended 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 increased
as provided in Section 14.3.2 of AIA Document A201—2007, except that the
term “profit” shall be understood to mean the Contractor’s Fee as described in
Sections 5.1.1 and Section 6.4 of this Agreement.


 


ARTICLE 15   MISCELLANEOUS PROVISIONS


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


 


§ 15.2
Payments due and
unpaid under the 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.)


 


12%
annual rate


 


§ 15.3 The Owner’s representative:


(Name,
address and other information.)


 


Thomas
Lyles


Tidelands
Bank


Post
Office 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.)


 


Gene
Garrett


Hill
Construction


295
Seven Farms Drive, Suite 301


 


11

















 


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’s
representative shall be changed without ten days’ written notice to the other
party.


 


§ 15.6 Other provisions:


 


14.6.1
OTHER LABOR COSTS TO BE REIMBURSED


 


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


 


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


 


ARTICLE 16   ENUMERATION OF CONTRACT DOCUMENTS


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


 


§ 16.1.1
The Agreement is
this executed AIA Document A102—2007, Standard Form of Agreement Between
Owner and Contractor.


 


§ 16.1.2
The General
Conditions are AIA Document A201—2007, General Conditions of the Contract for
Construction.


 


§ 16.1.3
The Supplementary
and other Conditions of the Contract:


 


	
  Document

  	
   

  	
  Title

  	
   

  	
  Date

  	
   

  	
  Pages

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


§ 16.1.4
The
Specifications:


(Either
list the Specifications here or refer to an exhibit attached to this
Agreement.)


 


SEE
ATTACHMENT B


 


	
  Section

  	
   

  	
  Title

  	
   

  	
  Date

  	
   

  	
  Pages

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


§ 16.1.5
The Drawings:


(Either
list the Drawings here or refer to an exhibit attached to this Agreement.)


 


SEE
ATTACHMENT C


 


	
  Number

  	
   

  	
  Title

  	
   

  	
  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


§ 16.1.6
The Addenda, if
any:


 


	
  Number

  	
   

  	
  Date

  	
   

  	
  Pages

  	
   

  
	
  1

  	
   

  	
  OCTOBER
  15, 2009

  	
   

  	
  4

  	
   

  
	
  2

  	
   

  	
  OCTOBER
  23, 2009

  	
   

  	
  3

  	
   

  
	
  3

  	
   

  	
  OCTOBER
  30, 2009

  	
   

  	
  1

  	
   

  



 


Portions of Addenda
relating to bidding requirements are not part of the Contract Documents unless
the bidding requirements are also enumerated in this Article 16.


 


§ 16.1.7
Additional
documents, if any, forming part of the Contract Documents:


 


12

















 


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


 


«  »


 


.2                     Other documents, if any, listed below:


(List here any additional documents that are intended to
form part of the Contract Documents. AIA Document A201—2007 provides that
bidding requirements such as advertisement or invitation to bid, Instructions
to Bidders, sample forms and the Contractor’s bid are not part of the Contract
Documents unless enumerated in this Agreement. They should be listed here only
if 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 shall
purchase and maintain insurance and provide bonds as set forth in Article 11
of AIA Document A201—2007.


(State
bonding requirements, if any, and limits of liability for insurance required in
Article 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 first
written 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)

  



 


13