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2008-008 Purchasing - Telesis Construction Management for County Campus Contracts
LAW OFFICES COLEMAN, GLEDHILL, HARGRAVE & PEEK A PROFESSIONAL CORPORATION Ap r i l 2 9, 2 0 0 9 129 E. TRYON STREET P. O. DRAWER 1529 HILLSBOROUGH, NORTH CAROLINA 27278 919-732-2196 FAX 919.732-7997 FROM THE DESK OF www.cgh -law.co GEOFFREY E. GLEDHILL Ms. dam Jones E-MAIL:ggledhill@cghp-law.com Director Orange County Purchasing & Central Services Post Office Box 8181 R@Ce1V~ Hillsborough, North Carolina 27278 RE: County Campus Contracts APR 2 ~ 2009 Dear Pam: Orange County Purchasing and Central 8enacds Enclosed are the following: 1. the January 15, 2008 CMAR agreement and the April 7, 2009 amendment to the CMAR agreement, both between Orange County and Telesis Construction Management, LLC; bonds and certificates of insurance and applicable evidence of endorsements to the insurance policies for those agreements; 2. the April 7, 2009 amendments to the Agreements of Purchase and Sale for the Office Building and the Library; and 3. the Parking Deck Lease and Right of First Offer and Right of First Refusal, effective February 25, 2009. Each set of copies of the enclosed documents is identified as to the intended recipient. Please keep or distribute each as appropriate. I have retained a complete set of the enclosed for my files and to aid me in the work I will be doing in the "closing" of the Parking Deck Lease and the purchase by the County of the Office Building and Library. Please call me with questions or comments. Very truly yours, COLEMP,N, GLEDHILL, HARGRAVE & PEEK, P.C. edhill GEG/lsg Enclosures xc: John L Roberts., Esquire F:\Lisa\letters\Pam Jones ltr re County Campus contracts.doc . ~`~~`~ ~- , _ Please return this copy to Clerk to the Board's office for l~t~F ORANGE COUNTY AGREEMENT FOR CONSTRUCTION MANAGER AT RISK NORTH SERVICES CAROLINA This AGREEMENT is made and effective on this date: ~ J~ Z~~ BETWEEN The Owner: ORANGE COUNTY And the Construction Manager (hereinafter referred to as the "CM"): TELESIS CONSTRUCTION MANAGEMENT, LLC For services in connection with the Project known as: The Orange County two story Public Library and three story Office Building located on Margaret Lane in Hillsborough, North Carolina, as further described in Article 2 For which the Designer is: Brockwell Associates, Inc., in conjunction with Gardner & McDaniel, PA, Engineered Designs, Inc. and Summit Consulting Engineers, PLLC, as sub-consultant to Brockwell Associates, Inc.; andPhillip K. Barton, Library interior space planner. The Owner and CM, in consideration of their mutual covenants herein, agree as set forth below: TABLE OF CONTENTS ARTICLE 1 -RELATIONSHIP OF THE PARTIES .............. 1.1 Owner and Construction Manager 1.2 Owner and Designer 1.3 CM and Contractors 1.4 Relationship of the CM to the Designer ARTICLE 2 -PROJECT DEFINITION.. ARTICLE 3- CONSTRUCTION MANAGER'S SERVICES........ 3.1 CM Services 3.2 CM Personnel 3.3 Construction Management Plan 3.4 Consultant Selection 3.5 Time Manaoement 3.6 Cost Management .......... a .... 4 .. 4 3.7 Mahagement Information Svstem (MIS) 3.8 Desion Phase Services 3.9 Procurement Phase 3.10 Construction Phase 3.11 Post Construction Phase 3.12 Additional Services ARTICLE 4 -TIME FOR PERFORMANCE ............................. .................................................................. 16 4.1 Duration 4.2 Master Schedule 4.3 Non-waiver 4.4 Schedule Adjustment 4.5 Early Start 4.6 Recovery 4.7 Schedule Monitoring 4.8 Schedule Revisions 4.9 Withholding Payment from CM 4.10 Work by Owner 4.11 Force Maieure 4.12 Notice 4.13 Weather Delays 4.14 Damaaes for Delay 4.15 Liquidated Damages ARTICLE 5 -CHANGES IN THE CONSTRUCTION MANAGER'S SERVICES AND ADDITIONAL COMPENSATION 19 5.1 Owner Changes ARTICLE 6 -OWNER'S RESPONSIBILITIES .................. 6.1 Program 6.2 Decisions 6.31nsurance 6.4 Notice of Nonconformities 6.5 Approvals 6.6 Designer 6.7 Budget 6.8 Separate Contracts 6.9 Copies of Drawings and Specifications 6.10 Permits and Approvals 6.11 Funding Requirements 6.12 Communication with Contractors 6.13 Copies of Notices and Communication 6.14 Owner's Representative 6.15 Payments to CM ARTICLE 7 -GUARANTEED MAXIMUM PRICE AND PAYMENT.... ............................................................... 19 20 2 7.1 Guaranteed Maximum Price 7.2 Cost of the Work 7.3 Adjustments to the Guaranteed Maximum Price 7.4 Fixed Fee and General Conditions Costs ARTICLE 8 -INSURANCE AND INDEMNITY ............................................................................................... 23 8.1 CM's Liability Insurance 8.2 Builder's Risk Insurance 8.3 Indemnity ARTICLE 9 -TERMINATION AND SUSPENSION ......................................................................................... 25 9.1 Termination for Convenience 9.2 Termination for Default 9.3 Additional Termination Provisions 9.4 Suspension ARTICLE 10 -DISPUTE RESOLUTION ....................................................................................................... 27 ARTICLE 11 -ADDITIONAL PROVISIONS .................................................................................................. 27 11.1 Confidentiality 11.2 Signs 11.3 Limitation and Assignment 11.4 Minority Business Enterprise Program 11.5 Extent of Agreement 11.6 Severability 11.7 Meaning of Terms 11.8 Notices 11.9 Bonds 11.10 Ownership of Documents ARTICLE 12 -SPECIAL GUARANTEED MAXIMUM PRICE PROVISIONS ......................................................... 29 12.1 Guaranteed Maximum Price Appendix A -Dispute Resolution Appendix B -List of Cost Elements [not used] Appendix C -Orange County Minority Business Enterprise Policy Appendix D -Divisions of the Work for Guaranteed Maximum Price [not used] Appendix E -- Project and Construction Budget Appendix F -- Master Schedule 32 3 ARTICLE 1 RELATIONSHIP OF THE PARTIES 1.1 Owner and Construction Manager The CM and the Owner shall perform as stated in this Agreement and each accepts the relationship between them that is established by this Agreement. The CM covenants with the Owner to furnish professional construction management services during the Project. In broad terms, under this Agreement, the CM will perform construction services, including value engineering reviews and project management, and field supervision, and shall use its best efforts to see to it that the Work of the Project. is done in a manner consistent with the interests of the Owner, and in conformity with the Contract Documents, and to furnish its skill and judgment with due care in accordance with applicable federal, state, and local laws and regulations that are in effect on the date of this Agreement first written above. 1.2 Owner and Designer The Owner shall contract separately with the Designer to provide architectural and engineering design for the Project. The Project is defined in Article 2 of this Agreement. In this Agreement the term "Drawings and Specifications" shall refer to the drawings and specifications prepared by the Designer in accordance with its agreement with the Owner. 1.3 CM and Contractors The CM shall enter into contracts for labor, materials and services in accordance with N.C. Gen. Stat. § 143-128.1 and other sections of Chapter 143 Article 8 of the North Carolina General Statutes relating to construction management at risk contracts. In this Agreement the term "Contractor" or "Contractors" shall refer to all persons with such contracts with the CM. 1.4 Relationship of the CM to the Designer In providing construction management services described in this Agreement, the CM shall maintain a working relationship with the Designer. The Designer is solely responsible for the Project design and shall perform in accordance with the Designer agreement with the Owner and nothing in this Agreement shall be construed to mean that the CM is responsible for the design of the Project or that the CM assumes any of the contractual or customary duties of the Designer or any other persons or parties not specified by this Agreement. The CM and the Designer shall each be provided with a copy of the other's contract with the Owner. ARTICLE 2 PROJECT DEFINITION The term "Project" when used in the Agreement shall mean the total construction of which the Work may be a whole or part of the Project.. The term "Work" required for the "Project" used in this Agreement shall mean the various parts of total construction to be performed under this Agreement. The Project name and location is the Orange County two story Public Library and three story Office Building located on Margaret Lane in Hillsborough, North Carolina. The Project is intended for use as a public library and a County office building as described in the Agreement of Intent between the Owner and the CM, dated November 2, 2006 (the "Agreement of Intent"), the Orange County Office and Library Complex project report last updated June 15, 2006 and all site plan and related documents submitted to the Town of Hillsborough a part of the Town of Hillsborough approval of the Project and as those documents are or will be modified to conform to Project approvals obtained by the Town of Hillsborough. The Project shall be fully described in the Contract Documents, which are hereby defined to include: This Agreement, plus the Drawings and Specifications prepared by the Designer, plus allowable Modifications, Addenda, Change Orders, Field Directives, Approved Submittals and Product Data incorporated into the Contract Documents. ARTICLE 3 CONSTRUCTION MANAGER'S SERVICES 3.1 CM Services The CM shall perform the Services described herein. The sequence in which they are provided shall be generally as set forth in the approved Master Schedule. 3.2 CM Personnel The services to be provided by the CM under this Agreement shall be performed by personnel identified by the CM, and approved by the Owner, before commencing services. The 4 furnishing of services by such personnel throughout the duration of the Project, and any individuals approved by the Owner to replace them, is of the essence to this Agreement. 3.2.1 Additions Removals Replacements From time to time, personnel may be added as necessary and appropriate to the stage of planning, programming, designing and constructing the Project. -The CM shall anticipate the need for such additional personnel by submitting to the Owner, no later than seven (7) days prior to the need for the additional personnel, a list of the proposed additional personnel, attaching the resumes of proposed additional personnel, and stating the reasons for such additions. The Owner shall promptly review the proposed additions and either approve or disapprove the additional personnel in writing. The CM shall not employ any individual to perform the functions of any approved personnel without the advance approval of the Owner, which approval shall not be unreasonably withheld. The CM shall not, for so long as any approved person is employed by the CM, change such person without the Owner's prior written approval, which shall not be unreasonably withheld. If the Owner becomes dissatisfied with the quality or timeliness of the services rendered by any approved person, the CM shall promptly remove such person and recommend a replacement. If any approved person ceases employment with the CM, or if the Owner requests the removal of any such person, then the CM shall promptly notify the Owner of a proposed substitute of at least equal qualifications to perform the same functions, and provide a resume for the substitute. Any replacement responsible person must be approved by the Owner prior to commencing performance of any services for the Project, which approval shall not be unreasonably withheld. The CM shall bear, at its own expense and without reimbursement by the Owner, all costs associated with replacing, for any reason, any approved personnel. The CM shall remain solely responsible to the Owner, notwithstanding the Owner's approval of any approved personnel, for the quality and performance of all services provided by such personnel. 3.2.2 CM's Proiect Representative The CM shall designate a Project Representative who has the authority to act on behalf of the CM in respect to all matters that are the subject of this Agreement, including, without limitation, the power and authority to enter into agreements or modifications that contractually bind the CM. The Project Representative shall be available at all times during all phases of performance of services under this Agreement to consult with the Owner on matters pertinent to construction of the Project. 3.2.3 CM's Employees None of the persons employed by the CM shall be considered employees of the Owner. The CM shall be solely responsible for any workers' compensation obligations, withholding taxes, unemployment insurance, compliance with immigration and licensing laws, and any other employer obligations with respect to all of its employees. 3.3 Construction Management Plan Within thirty (30) days after execution of this Agreement, the CM shall present to the Owner a Construction Management Plan for the Project, including dates by which deliverables required by the Construction Management Plan will be completed. The CM shall make recommendations for revisions to the Construction Management Plan throughout the duration of the Project, as may be appropriate. In preparing the Construction Management Plan, the CM shall consider the Owner's schedule, budget, and design requirements for the Project. The Construction Management Plan shall include a description of the various bid packages recommended for the Project and a preliminary Master Schedule. The Construction Management Plan shall be presented to the Owner for acceptance. Revisions approved by the Owner shall be incorporated into the Construction Management Plan. 3.4 Consultant Selection If requested by the Owner, the CM shall assist the Owner in the selection of designers and other consultants necessary for the Project (generally referred to in this Agreement as "Consultants") by developing lists of potential firms, developing criteria for selection, preparing and transmitting the requests for proposal, assisting in reviewing written proposals, assisting in conducting interviews, evaluating candidates and making recommendations. 3.4.1 Consultant Contract Preparation If requested by the Owner, the CM shall assist the Owner in the preparation and review of Agreements between the Owner and the Consultants engaged by the Owner. 3.4.2 Consultant Orientation If requested by the Owner, the CM shall conduct or assist the Owner in conducting orientation sessions during which the 5 Consultants shall receive information regarding the Project scope, schedule, budget, and administrative requirements. 3.5 Time Management The CM shall be responsible for Project scheduling and efficient and timely prosecution and completion of the Work, as follows: 3.5.1 Master Schedule In accordance with the Construction Management Plan, the CM shall prepare a preliminary Master Schedule for the Project. The preliminary Master Schedule shall specify milestone dates and the proposed start and finish dates for each major project activity including all design and construction activities. The CM shall submit the Master Schedule to the Owner for preliminary acceptance. 3.5.2 Updates and Revisions to Master Schedule As necessary throughout the Project, the CM may make revisions to the Master Schedule. All adjustments to the Master Schedule shall be made for the benefit of the Project. The Owner shall issue change orders to the appropriate parties as required by this Agreement to implement justified revisions to the agreed milestone dates in the Master Schedule. During the Construction Phase, the CM shall update the Master Schedule and distribute copies to the Owner and Designer monthly. 3.5.3 Design Phase Milestone Schedule [Not Used.] 3.5.4 Pre-Bid Construction Schedules Prior to transmitting Contract Documents to bidders, the CM shall cause to be prepared aPre-Bid Construction Schedule for the Project and make the schedule available to the bidders during the Procurement Phase. The CM shall inform the bidders of their responsibilities regarding the Pre-Bid Construction Schedule specified in the Instructions to Bidders or Contract Documents. 3.5.5 Contractors' Construction Schedule The CM shall provide a copy of the Master Schedule to the bidders. As part of the notice of award of each contract, the CM shall inform each Contractor of the requirements for the preparation of a construction schedule. The Contractor shall prepare its own construction schedule in accordance with the requirements of the Contract Documents. The Contractor's construction schedule shall establish completion dates that comply with the requirements of the Master Schedule. 3.5.6 Master Schedule. After afl bids are accepted and all Contractors have executed their contracts for construction, the CM shall cause to be prepared and provide to each Contractor a Master Schedule pursuant to which each Contractor will perform its division of the Work unless and until revised. 3.6 Cost Manaoement The CM shall be responsible for implementing a system of cost control, for the completion of the Project within the Guaranteed Maximum Price agreed to by the CM and the Owner as set forth herein. 3.6.1 Construction Market Survey In accordance with the Construction Management Plan, the CM shall, at the written request of the Owner, conduct a Construction Market Survey to provide current information regarding the general availability of local construction services, labor, materials and equipment cost and other economic factors related to the Project. A report of the Construction Market Survey shall be provided to the Owner and the Designer. 3.6.2 Project and Construction Budget Based on the Construction Management Plah and the Construction Market Survey, if needed, the CM shall prepare a Project and Construction Budget based on separate divisions of the Work required for the Project and shall identify contingencies for design and construction. The CM shall submit the Project and Construction Budget to the Owner for acceptance. If the CM believes that additional surveys, geotechnical investigations, environmental assessments or other testing or investigation is necessary and reasonable to fashion a reliable Project and Construction Budget, the CM shall make recommendations to the Owner for such services, with an explanation of why the CM believes that the services are reasonable and necessary. The decision to procure such services shall be solely in the discretion of the Owner, and shall be at the Owner's expense. The Project and Construction Budget shall be revised as directed by the Owner. 3.6.3 Preliminary Estimate and Budget Analysis [Not Used.] 3.6.4 Cost Control 6 [Not Used.] 3.6.5 Project and Construction Budget Revision In the event the CM and the Owner concur the Guaranteed Maximum Price is likely to be exceeded because of any of the grounds upon which the CM has -the right to seek an adjustment to the Purchase Price as provided in the Agreement of Purchase and Sale (Library Building) and or the Agreement of Purchase and Sale (Office Building), or the Owner's Interior Upfit Allowance is exceeded, the CM shall make recommendations to the Owner concerning design changes that may result in revisions to the Project and Construction Budget and divisions of the Work required for the Project. 3.6.6 Value Engineering Studies In the event the CM and the Owner concur the Guaranteed Maximum Price is likely to be exceeded because of any of the grounds upon which the CM has the right to seek an adjustment to the Purchase Price as provided in the Agreement of Purchase and Sale (Library Building) and or the Agreement of Purchase and Sale (Office Building), or because the Owner's Interior Upfit Allowance is exceeded, the CM shall provide value engineering recommendations to the Owner and Designer for major construction components, including cost evaluations of alternative materials and systems. 3.6.7 Estimates for Addenda Prior to bidding, the CM shall notify the Owner and the Designer if any addendum issued by the Designer could impact the Cost of the Work of the Project, and will prepare an estimate of costs for all such addenda and shall submit the estimates to the Owner for approval. After approval by the Owner, addenda shall be transmitted to bidders by the CM. Once bids are received and contracts are awarded to each Contractor, any addenda issued by the Designer which affects a Contractor shall be processed through the change order provisions in the Agreement. 3.6.8 Analyzing Bids: Upon receipt of bids, the CM shall evaluate the bids, including alternate prices and unit prices, and before award of any construction contract shall provide the Owner and the Designer with a report summarizing the bids. 3.6.9 Schedule of Values (Each Contract) The CM shall, in participation with the Contractors, determine a Schedule of Values for each of the construction contracts or, if the entirety of the Work is to be performed by a single prime, a consolidated schedule of values. The Schedule of Values shall be the basis for the allocation of the Construction Contract price to the activities shown on the Contractor's Construction Schedule. 3.6.10 Allocation of Costs to Contractor's Construction Schedule [Not used] 3.6.11 Change Order Control The CM shall establish and implement a change order control system. 3.6.11.1 All proposed Owner-initiated change orders shall first be described in detail in writing by the Owner, or the Designer if so requested by the Owner, and forwarded to the CM. The CM shall then forward a request for proposal to the appropriate Contractor (or Contractors), accompanied by technical Drawings and Specifications prepared by the Designer. In response to the request for a proposal, the Contractor shall submit to the CM for evaluation detailed information concerning the costs and time adjustments, if any, necessary to perform the proposed change order work. The CM shall review the Contractor's proposal, shall discuss the proposed change order with the Contractor and determine the Contractor's basis for the cost and time to perform the Work and, as applicable, the effect, if any, on the Guaranteed Maximum Price. The CM shall present its findings to the Owner and Designer. Following Owner acceptance, the Designer shall prepare the change order documents for signature by the CM and Owner. Upon execution of the change order documents between the CM and Owner, the CM shall prepare change order documents for signature by the affected Contractor(s). The CM shall verify that any adjustment of time required by approved change orders has been incorporated into the Contractor's Construction Schedule. 3.6.11.2 The CM shall review the contents of all Contractor- requested changes to the Contract Time or Contractor's Contract Price, determine whether an adjustment to the Guaranteed Maximum -Price or the Master Schedule is warranted under the Contract Documents, and determine the amount or length, if any, of the allowable adjustment to the Guaranteed Maximum Price and the Master Schedule. If the CM believes that an adjustment to the Contractor's Contract might be warranted by a Contractor change request, the CM shall provide the Designer with a copy of the change request, 7 and the CM shall, in its evaluations of the Contractor's request, consider the Designer's comments regarding the proposed changes. The CM shall present its findings to the Owner and Designer regarding the proposed changes. If, after review by the Owner and Designer, the Owner determines that an adjustment to the Guaranteed Maximum Price or Master Schedule is warranted, the Designer shall prepare the change order documents for signature by the CM, the Owner and the Designer. Upon execution of the change order documents between the CM and Owner, the CM shall prepare change order documents for signature by the affected Contractor. 3.6.11.3 In instances where a lump sum or unit price is not authorized by the Owner in a change order prior to performing Work described in a request for proposal as provided in Paragraph 3.5.11, the CM shall request from the Contractor records of the cost of payroll, materials and equipment and the amount of payments to subcontractors incurred by the Contractor in performing the Work. 3.6.12 Trade-Off Studies [Not used] 3.6.13 Proaress Certificates In consultation with the Designer, the CM shall inspect the work to determine compliance with the Contract Documents, review the monthly payment applications submitted by each Contractor and determine whether the amount requested reflects the progress of the Contractors' Work. The CM shall make appropriate adjustments to each payment application and shall prepare and forward to the Designer and Owner a progress payment report. The report shalt state the total contract price, payments to date, current payment requested, retainage and actual amounts owed for the current period. Included in this report shall be a certificate of payment that shall be signed by the CM and delivered to the Owner. The CM shall make payments that are due to each Contractor, supplier, and materialman prior to the submission by each Contractor, supplier and materialman of the next payment application of each. In addition, the CM shall keep the Project and the site on which Work is performed free and clear of all liens and claims from Contractors, subcontractors, or suppliers. Each payment application from each Contractor and the CM shall contain sales tax information on forms provided by the Owner. 3.7 Management Information Svstem (MIS) [Not Used.] 3.7.1 Pre-construction Procedures [Not Used.] 3.7.2 Schedule Maintenance Reports The CM shall prepare and distribute schedule maintenance reports on a monthly basis that shall contrast actual progress against scheduled progress for each Phase and the overall Project and shall make recommendations to the Owner for corrective action to maintain the Master Schedule and all design and construction schedules. During the Construction Phase the reports shall compare the actual construction dates to scheduled construction dates of each separate construction contract and to the Master Schedule for the Project. 3.7.3 Project Cost Reports [Not Used.] 3.7.4 Cash Flow Report [Not Used.] 3.7.5 Change Order Report The CM shall prepare and distribute Design Phase reports on a monthly basis that shall list all Owner-approved addenda, substitutions and change orders as of the date of the report and shall state the effect of the changes on the Project and Construction Budget and the Master Schedule. The CM shall continue to prepare and distribute monthly change order reports during the Construction Phase. The report shall include logs of all requests for information, requests for interpretation of the design documents, requests for proposals, notices of events that might justify an adjustment in the Guaranteed Maximum Price or Master Schedule, and status of critical decisions to be made by the Owner or the Designer. The report shall list all Owner-approved change orders by number, a brief description of the change order work, the cost established in the change order and percent of completion of the change order work. The report shall also include similar information for potential change orders or impact on the Guaranteed Maximum Price of which the CM may be aware. 3.7.6 Proiect and Construction Budoet Revisions The CM shall make recommendations to the Owner concerning construction changes that may result in revisions to the Project Guaranteed Maximum Price. 8 3.7.7 Progress Payment Reports The CM shall prepare and distribute the progress payment reports. The reports shall state the total construction contract price, payment to date, current payment requested, retainage, sales and use tax paid, and actual amounts owed this period. A portion of this report shall be a certificate of payment that shall be signed by the CM and delivered to the Designer and the Owner. 3.7.8 Contractor's Safety Program On a monthly basis, the CM shall review the safety programs of each Contractor and confirm that each Contractor has established and implemented safety programs as required by the Contract Documents. 3.7.9 Final Inspections and Commissioning The CM shall schedule final inspections and, if required by the Contract Documents, commissioning of systems in the Project, and shall compile and organize all inspection reports for the Project records. 3.7.10 Closeout Reports At the conclusion of the Project, the CM shall prepare final project accounting and closeout reports. 3.7.11 MIS Reports for Move-in and Occupancy [Not Used.] 3.8 Design Phase Services All drawings and specifications shall be prepared by the Designer and submitted to the Owner for review and authorization to proceed with procurement and construction. The CM shall provide the following services related to design of the Project. 3.8.1 Proiect Conference In accordance with the approved Construction Management Plan and Master Schedule, the CM shall conduct a project conference attended by the Designer, the Owner and others as necessary. During the Project Conference, the CM shall review the Construction Management Plan, the Master Schedule, the Design Phase Milestone Schedule and the Project Guaranteed Maximum Price. The CM shall conduct and prepare minutes of this meeting. The CM shall monitor the Designer's compliance with the Construction Management Plan and the CM shall coordinate and expedite the flow of information between the Owner, Designer, the CM and others as necessary. 3.8.3 Prooress Meetings The CM shall participate in regularly scheduled progress meetings attended by the Owner, CM and others as necessary. Such meetings shall serve as a forum for the exchange of information concerning the Project and the review of design progress. The Designer shall prepare and distribute minutes of these meetings to the Owner, CM and others. 3.8.4 Review of Design Documents The CM shall review all design documents, including drawings, specifications, addenda, and supplemental design information, for clarity, consistency, constructibility and coordination among the Contractors. The results of the review shall be provided in writing as notations on the documents or in a written report. The CM is not responsible for providing, nor does the CM control, the Project design and contents of the design documents. By performing the reviews described herein, the CM is not acting in a manner so as to assume responsibility or liability, in whole or in part, for all or any part of the Project design and design documents. The CM's actions in reviewing the Project design and design documents and in making recommendations as provided herein are only advisory to the Owner. 3.8.5 Design Recommendations The CM shall make recommendations to the Owner and Designer with respect to constructibility, construction cost, sequence of construction, construction duration, possible means and methods of construction, time for construction, and separation of the Project contracts for various categories of Work. In addition, the CM shall give to the Designer all data of which it is aware concerning patents or copyrights for inclusion in Contract Documents. 3.8.6 Owner Design Reviews The CM shall compile and convey, in an expedited manner, the Owner's design review comments to the Designer made after the execution of this Agreement. 3.8.7 Approvals by Regulatory Agencies 3.8.2 Design Phase Information 9 The CM shall assist the Designer with transmittal of documents to regulatory agencies for review and shall advise of potential problems in completing such reviews. 3.8.8 Construction Contracts and General Conditions The CM shall recommend for approval by the Owner the appropriate Contractor bid packages. The CM shall take into account the needs of the Project, the Master Schedule, risk management, and the available resources, and divide the Work for the best benefit of the Project. The CM and the Designer shall collaborate on the preparation of bid documents consistent with the bid packages identified by the CM and approved by the Owner. Consistent with State law, one (single prime bidding) or more (multi prime bidding) bid packages shall be prepared as appropriate for the general construction, electrical, mechanical, fire protection, and plumbing divisions of the Work of the Project. The CM shall prepare any other contract packages for other divisions or subdivisions of the Work as agreed with the Owner. The form of agreement and general conditions for inclusion in all bid packages and use in the contracts between the CM and the Contractors for construction for the Project shall be based on a form of Agreement selected by the CM and the General Conditions of the Orange County Contract For Construction -Construction Manager at Risk. The form of Agreement selected by the CM shall be consistent with the Orange County General Conditions of the Contract For Construction -Construction Manager at Risk. The requirements of this Agreement shall be included in each construction contract to the extent applicable to the construction contract. Supplementary General Conditions for Contractors shall be prepared by the CM and submitted to the Owner and the Designer with adequate time for review and comment before inclusion in bid packages. The Designer and the CM will collaborate on the preparation of the general Division One requirements of the Specifications. Separate General Conditions for materials and equipment procurement shall be prepared by the CM to meet the specific requirements of the Project using forms approved by the Owner. The CM shall be afforded a reasonable opportunity to review and comment on all special warranties and other obligations imposed on the Contractors by the Specifications. 3.8.9 Public Relations The CM shall assist the Owner in public relations activities and shall prepare information for and attend public meetings regarding the Project as reasonably required by the Owner. 3.8.10 Project Funding The CM shall assist the Owner in preparing documents concerning the Project for use in obtaining or reporting on project funding. The documents shall be prepared in a form approved by the Owner. 3.9 Procurement Phase All construction contracts labor materials and services shall be procured in accordance with N C. Gen. Stat. & 143-128.1 and other sections of Chapter 143 Article 8 of the North Carolina General Statutes relating to construction management at risk contracts. 3.9.1 Preoualifvino Bidders The . CM shall develop lists of possible bidders and shall prequalify bidders. This service shall include the following: preparation and transmission of questionnaires; receiving and analyzing completed questionnaires; interviewing possible bidders, bonding agents, and financial institutions; and preparing summary reports regarding this activity to the Owner. The CM shall also prepare and transmit to the Owner a bidders list for each bid package. The Owner shall notify the CM promptly of any reasonable objections to a proposed bidder, and the CM shall remove that bidder from the bidders list. 3.9.2 Bidder's Interest Campaion [Not used] 3.9.3 Notices and Advertisements The CM shall prepare and place notices and advertisements to solicit competitive bids for the Project. 3.9.4 Delivery of Bid Documents The CM shall expedite the delivery of bid documents to the bidders. The CM shall obtain a full set of documents from the Designer and arrange for printing, binding, wrapping and delivery to the bidders. The CM shall maintain a record of bidders receiving documents. 3.9.5 Pre-Bid Conference In conjunction with the Designer, the CM shall conduct aPre- Bid Conference. These conferences shall be forums for the CM and Designer to explain to the bidders the Project requirements, including information concerning schedule requirements, time and cost control requirements, access requirements, contractor interfaces, minority and women's 10 business enterprise goals, the project administrative requirements and technical information. 3.9.6 Information to Bidders The CM shall develop and coordinate procedures to provide answers to bidders' questions. 3.9.7 Addenda The CM shall receive from the Designer a copy of all addenda. The CM shall review addenda for clarity, consistency and coordination.. By performing the reviews described herein, the CM is not acting in a manner so as to assume responsibility or liability, in whole or in part, for all or any part of the Project design or the content of the design documents. The CM shall also distribute a copy of all addenda to each bidder receiving documents. 3.9.8 Bid Opening The CM shall conduct bid openings in accordance with statute and shall evaluate the bids to determine the lowest responsive and responsible bidder. The CM shall not award. or enter into any contract for Work on the Project until the CM has provided the Owner with written notice of the intent to award the contract with reasons for awarding the contract to the successful bidder. This written notice shall also describe compliance by the bidder with the Owner's Minority Business Enterprise Policy, attached to this Agreement as Appendix C. The Owner shall be given reasonable opportunity to consider the qualifications of the successful bidder, and the impact of award of the contract on the Project and Construction Budget. 3.9.9 Construction Contracts After obtaining Owner's approval, the CM shall prepare, execute, and deliver the Contract Documents between the CM and the Contractors. The CM shall also issue the notices to proceed. 3.9.10 Permits Insurance and Labor Affidavits The CM shall verify that all required building permits, bonds, insurance, labor affidavits, and waivers required for the Project have been obtained. 3.10 Construction Phase The CM shall be responsible for construction administration and management, overall field supervision, Project safety program, quality assurance, and other services needed to construct the Project, using means and methods appropriate for the Project and consistent with the interests of the Owner and the requirements of the Contract Documents. 3.10.1 Pre-Construction Conference In connection with the Designer, the CM shall conduct aPre- Construction Conference during which the CM shall review the reporting procedures, site operations and other contractual requirements for the Project. 3.10.2 Onsite Manaoement and Construction Phase Communication Procedures The CM shall provide contract administration and establish and implement coordination and communication procedures among the CM, Owner, Designer, and Contractors. 3.10.3 Contract Administration Procedures The CM shall establish and implement procedures for expediting and processing requests for information, shop drawings, material and equipment sample submittals, Contractor schedule adjustments, change orders, substitutes, payment requests and the maintenance of logs. The CM shall maintain daily job reports. The CM shall be the party to whom requests for information, submittals, Contractor schedule adjustments, substitutes, change order requests and payment requests shall be submitted by the Contractors. 3.10.4 Proiect Site Meetinos The CM shall conduct coordination meetings at the site with all Contractors. As set forth in the Master Schedule and the Contract Documents, the CM shall conduct pre-installation and preconstruction meetings for key components of the Work. The CM shall conduct a monthly meeting with the Owner and the Designer to update them on progress of the Work. The CM shall cause to be prepared minutes of all project site meetings and distribute the minutes or cause them to be distributed to all attendees, the Owner and Designer. 3.10.5 Coordination of Other Independent Consultants Technical inspection and testing provided by the Designer or others shall be coordinated by the CM. The CM shall be provided with a copy of all inspection and testing reports on the day of the inspection or test or when issued. 3.10.6 Contractor's Construction Schedule The CM shall review each Contractor's Construction Schedule and shall verify that the schedule is prepared in accordance with the requirements of the Contract Documents and that it 11 establishes completion dates that comply with the requirements of the Master Schedule. 3.10.7 Construction Schedule Report The CM shall review the progress of construction of each Contractor on a periodic basis, not less than monthly, shall evaluate the percentage complete of each construction activity as indicated in the Contractor's Construction Schedule and shall review such percentages with the Contractor. This evaluation shall serve as data for input to a monthly Construction Schedule report that shall be prepared and distributed to the Contractor, the Owner and Designer. The report shall indicate the actual progress compared to scheduled progress and shall serve as the basis for the progress payment to the Contractor. The CM shall determine and implement alternative courses of action that may be necessary to achieve contract compliance by the Contractor. 3.10.8 Recovery Schedules In the event the Project falls behind schedule (except as a result of an event described in Section 4.11), the CM shall require each Contractor to prepare and submit a recovery schedule as specified in the Contract Documents. The CM shall review and ascertain that the Contractor is providing sufficient resources to regain lost time. 3.10.9 Requests for Changes to the Contract Time and Guaranteed Maximum Price The CM shall review the contents of a request for changes to the construction contract time or price submitted by a Contractor, assemble information concerning the request and endeavor to determine the cause of the request. In instances where the CM's analysis reveals that the request is valid, the CM shall prepare a detailed report to the Designer and the Owner for review, consideration and approval. The CM shall, prior to the issuance of a change order, determine the effect on the Master Schedule of time extensions requested by the Contractor. The Designer shall prepare the necessary change order documents for signing by the CM, Designer and Owner. The CM shall then prepare the necessary documents to effect a change to the contract with the Contractor. If the Owner desires the change, the Owner shall approve a change in the Guaranteed Maximum Price that corresponds with any approved construction contract change order. 3.10.10 Quality Review and Warranty The CM unconditionally warrants and guarantees all materials and workmanship against patent defects arising from faulty materials, faulty workmanship or negligence for a period of twelve (12) months following the date of substantial completion of the Work and shall replace such defective materials or workmanship without cost to the Owner. 3.10.10.1 In addition to the foregoing general. warranty, the Contract Documents may require extended and/or third party warranties for specified building components, including without limitation mechanical and electrical equipment, elevators and escalators, security equipment, roof, curtain wall, doors and waterproofing. Extended warranties shall be specified in the Contract Documents. All such warranties shall either be provided by the CM or by a Contractor or manufacturer as provided in the Contract Documents. Such warranties shall provide, at a minimum, for the repair or replacement of defective or non-conforming components within the warranty period. 3.10.10.2 The CM shall establish and implement a program to monitor the quality of construction. The purpose of the program shall be to guard the Owner against defects and deficiency in the work of the Contractors. The CM shall transmit to the Designer and the Contractor a notice of nonconforming work and may require that the Contractors correct Work at no expense to the Owner when it is the opinion of the CM that the Work does not conform to the requirements of the Contract Documents. Except for minor variations as stated herein, the CM is not authorized as part of this service to change, evoke, enlarge, relax, alter, or to release any requirement of the Contract Documents or to approve or accept any portion of the Work not performed in accordance with the Contract Documents. 3.10.11 Testino by the CM The CM shall conduct additional tests and inspections that the CM believes should be conducted to monitor the quality of construction and compliance with the Contract Documents. Notice of all such tests and inspections shall be provided to the Owner and the Designer, and copies of the results and reports of all such tests and inspections shall be provided to the Owner and the Designer. 3.10.:12 Operation and Maintenance Materials The CM shall obtain from the Contractors, review and assemble operation and maintenance manuals, warranties and 12 guarantees for materials and equipment installed in the Project, in accordance with the Contract Documents and the Master Schedule. It is expected that all operation and maintenance manuals will be compiled and delivered to the Owner within thirty (30) days after the Project is substantially complete.. 3.10.13 Substantial Completion Substantial completion is the point in time when the Work, as determined by the Designer, is sufficiently complete in accordance with the Contract Documents that it can be utilized by the Owner for its intended use, and all necessary permits and permissions for beneficial occupancy and utilization having been obtained by the CM. All operations and maintenance manuals, Owner training, and as-built drawings must be submitted within thirty (30) days of substantial completion. The CM shall prepare and submit to the Contractors lists identifying Work that does not conform to the Contract Documents. The CM shall not request a Certificate of Substantial Completion from the Designer until the CM believes that the Project is substantially complete and certifies to the Designer that all of the Work is substantially complete. The Designer shall then determine whether the Project is substantially complete. Upon Substantial Completion, the Designer shall prepare and submit to the CM a deficiency list identifying all portions of the Work which are known by the Designer at that time to be incomplete or defective. Within thirty (30) days of receipt of this deficiency list, the CM shall complete and correct all items on that list along with all other Work required to achieve Final Completion of the Work. At any time prior to completion of the period of warranty, the Designer may submit to the CM a supplemental deficiency list, in which case the CM shall complete or correct any and all new items identified on the Supplemental deficiency list. 3.10.14 Final Completion In consultation with the Designer, the CM shall determine when the Project and the Contractor's Work are finally completed and, following completion of corrections, shall issue a Certificate of Final Completion to the Owner. Within thirty (30) days of the delivery of the Certificate of Final Completion to the Owner, the CM shall make all remaining payments due to Contractors. 3.10.15 Protection of the Work Property and the Public The CM shall be responsible for the entire site and shall provide all the necessary protections required by the Owner and by laws or ordinances governing safety and protection of property. Consistent with the indemnification provisions elsewhere in this Agreement, and subject to the benefits of any Owner-controlled or Owner-provided insurance that covers the interests of the CM and its Contractors, the CM shall be responsible for protecting the public and those on the site against all bodily injury or harm, and protecting against any damage to the Work, to adjacent property, and to property of others. The CM shall have access to the Project at all times. Subject to its ultimate contractual responsibility for protection of work, property and the public under this Agreement, and subject to any non-delegable duties imposed by law, the CM may delegate to Contractors these obligations of the CM under this Agreement, and may obtain indemnification and insurance from Contractors as the CM deems reasonable and prudent. 3.10.15.1 The CM shall provide cover and protect all portions of the structure when the Work is not in progress, provide and set all temporary roofs, covers for doorways, sash and windows, barricades, and all other materials necessary to protect all the Work on the building, whether set by it, or any of the Contractors. Any completed Work or Work in progress damaged through the lack of proper protection or from any other cause shall be repaired or replaced without extra cost to the Owner. 3.10.15.2 No fires of any kind will be allowed inside or around the operations during the course of construction. 3.10.15.3 The CM shall protect all trees and shrubs designated to remain in the vicinity of the operations by building substantial protection around same. The CM shall barricade all walks, roads, etc., as authorized by the Owner to keep the public away from the construction. All trenches, excavations or other hazards in the vicinity of the Work shall be well barricaded and properly lighted at night. 3.10.15.4 The CM shall cause to be developed and implemented a Project Safety Program. The Owner may reject the Project Safety Program and require that it be rewritten if in the Owner's reasonable opinion the Safety Program is inadequate. The CM shall report, to the Owner, any safety violations and actions taken to protect the safety of persons and property engaged in the Project. The CM shall require that all Contractors meet or exceed the Project Safety Program requirements including where those requirements meet or exceed State or Federal requirements. 13 3.10.15.5 In the. event the Owner implements an Owner Controlled Insurance Program ("OCIP"), the CM agrees to cooperate and coordinate with any safety plan or risk management plan implemented in connection with the OCIP. 3.10.15.6 The CM shall cause to be implemented the Project Safety Program for the protection of all persons on the job, including the requirements of the A.G.C. Accident Prevention Manual in Construction, as amended, and shall fully comply with- all state laws- or regulations and North Carolina State Building Code requirements to prevent accident or injury to persons on or about the location of the Work. The CM shall clearly mark or post signs warning of hazards existing, and shall barricade excavations, elevator shafts, stairwells, floor and wall openings and similar hazards. The CM shall protect against damage or injury resulting from falling materials and shall maintain all protective devices and signs throughout the progress of the Work. 3.10.15.7 The CM shall, at a minimum, adhere to the rules, regulations and interpretations of the North Carolina Department of Labor relating to Occupational Safety and Health Standards for the Construction Industry. 3.10.15.8 As part of the Project Safety Program the CM agrees to implement a Public Hazard Control Plan conforming to the standards set forth in ANSI A10.34-2005R. The Public Hazard Control Plan shall be submitted to the Owner for review and approval before construction begins on the Project. 3.10.15.9 The CM's Project Representative shall also be responsible for accident prevention on the Project. The name of the onsite safety inspector shall be made known to the Project Designer and Owner at the time the Work is started. The CM will provide the Owner with the name of each Contractor's onsite safety officer. 3.10.15.10 In the event of emergency affecting the safety of life, the protection of Work, or the safety of adjoining properties, the CM is hereby authorized to act at its own discretion, without further authorization from anyone, to prevent such threatened injury or damage. Any compensation claimed by the CM on account of such action shall be determined as provided for under Article 7 herein. 3.10.15.11 If reasonable precautions are inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance encountered but not created on the site by the CM or its Contractors, the CM shall, upon recognizing the condition, immediately stop Work in the affected area and report the condition to the Owner and to the Project Designer in writing. The Owner or the Project property owner if different from the Owner shall take responsibility for remediation of the material or substance from the site. If the CM claim's its progress in completing the Project is delayed because of the remediation response to the site, the CM shall file notice and a claim in accordance with this Agreement. 3.10.15.12 Any land-disturbing activity performed by the CM in connection with the Project shall comply with all erosion control measures set forth in the Contract Documents and any additional measures which may be required in order to ensure that the Project is in full compliance with the Sedimentation Pollution Control Act of 1973, as implemented by Title 15, North Carolina Administrative Code, Chapter 4, Sedimentation Control, Subchapters 4A, 4B and 4C, as amended (15 N.C.A.C. 4A, 4B and 4C). 3.11 Post Construction Phase The CM shall provide the following ongoing services in connection with Final Completion of the Work by the Contractors: 3.11.1 Record Documents The CM shall coordinate and expedite submittals of information from the Contractors for preparation of record Drawings and Specifications, and shall coordinate and expedite the transmittal of such record documents to the Owner. 3.11.2 Organize and Index Oaerations and Maintenance Materials Prior to final completion of the Project the CM shall compile manufacturers' operations and maintenance manuals, warranties and guarantees and bind such documents in an organized manner. This information shall then be provided to the Owner. 3.11.3 Occuoancv Permit The CM shall assist the Owner and Designer in obtaining an occupancy permit by accompanying governmental officials during inspections of the Project, preparing and submitting documentation to governmental agencies and coordinating final testing and other activities. 14 3.11,4 Occupancv/Coordination Plan The CM shall consult with the Owner, the Designer and appropriate regulatory agencies to assist Owner in its plan to occupy the building (Occupancy Plan), which Occupancy Plan will be completed as soon as possible prior to Substantial Completion. In the event the Occupancy Plan contemplates the Owner occupying the Project or any part of the Project prior to Final Completion, the CM, in consultation with the Owner, the Designer and appropriate regulatory agencies shall be responsible for insuring that the Occupancy Plan meets all regulatory requirements and that it is coordinated with the Project Construction. 3.12 Additional Services The CM agrees to perform all. tasks and functions reasonably necessary to complete the services described in the preceding paragraphs in this Article 3, unless the tasks or functions are explicitly described as Additional Services in this section 3.12. At the request of the Owner, the CM shall perform Additional Services and shall be compensated for same as provided in Article 7 of this Agreement. The CM shall perform Additional Services only after the Owner and CM have executed a written amendment to this Agreement providing for such services. The following is a list of Services that might reasonably be anticipated, with indication of whether the specified services will be considered to be Additional Services or required Services: 3.12.1 Services related to investigation or evaluation of existing conditions are required and are not Additional Services; 3.12.2 Services related to procurement, storage, maintenance and installation of Owner-furnished equipment, materials, supplies and furnishings are Additional Services; provided, however, that coordination and scheduling of the procurement, storage, maintenance and installation of Owner-furnished equipment, materials, supplies and furnishings with the Work of the Contractors is required and is not an Additional Service; 3.12.3 Services related to determination of space needs, programming, internal traffic studies or other utilization of the Project are Additional Services; 3.12.4 Warranty inspections during the warranty period of the Project are required and are not Additional Services; 3.12.5 Services made necessary by the failure to perform by or bankruptcy of a Contractor is a required Service and is not an Additional Service; 3.12.6 Preparation for and serving as a witness in connection with any public or private hearing or arbitration, mediation or legal proceeding relating to the Project is a required Service and is not an Additional Service; 3.12.7 Assisting the Owner in public relations activities and preparing information for and attending public meetings is a required Service, not an Additional Service; and 3.12.8 Services related to move-in including preparing and soliciting responses to requests for proposals, preparing and coordinating the execution of contracts, conducting pre-moving conferences, administering the contract for moving activities in conjunction with the move-in for the Project and providing on- site personnel to oversee the relocation of furniture and equipment by the movers while actual move-in is in progress are Additional Services; provided, however, that coordination of the Work of the Contractors with move-in by the Owner in accordance with the Master Schedule is required and is not an Additional Service. ARTICLE 4 TIME FOR PERFORMANCE 4.1 Duration The commencement date for the CM's Services shall be the date of execution of this Agreement by the Owner as stated herein or the date on which the Owner issues to the CM a written instruction to proceed with Services, whichever is earlier. The duration of the CM's Services under this Agreement shall be from the date of this Agreement through the issuance of the certificate of final completion, plus the one- year CM warranty phase services. 4.2 Master Schedule The CM's Services shall be performed for. the periods of time indicated in the approved Master Schedule. Firm dates for substantial completion and final completion of the Project shall also be fixed. At that time the CM represents that the Master Schedule has been reviewed in detail, that the Contractors participated in its preparation, that all of the activities which impact, limit, or otherwise affect the time of completion of the 15 Work are shown in the Master Schedule and that all of the activities of others which impact,. limit, or otherwise affect the start, duration, or completion of the CM's activities are also shown. The CM further represents that the CM can and will complete each activity within the time shown for that activity. Time is of the essence with respect to each such activity and completion date. 4.3 Non-waiver If the CM submits a construction schedule, progress report, or any other document that indicates or otherwise expresses an intention to achieve completion of the Work prior to any established completion date, no liability of the Owner to the CM for any failure of the CM to so complete the Work shall be created or implied. 4.4 Schedule Adjustment If the CM and its Contractors, for reasons beyond their control, are delayed in beginning any activity, the affected activity and any succeeding activity that is dependent upon that activity shall be adjusted accordingly; provided that at any time the Owner, by means of a Change Order, may require the CM to work overtime, to increase labor forces or to take any necessary or appropriate action to decrease the time required for any activity, and the CM shall be entitled to an adjustment in the Contract Price computed in accordance with Article 5. 4.5 Early Start [Not used] 4.6 Recovery [Not Used.] 4.7 Schedule Monitorino The Designer and Owner shall monitor progress of the Work and the CM shall cooperate with such monitoring and provide any and all information with respect to the progress of the Work and scheduling as the Owner or Designer may reasonably require. 4.8 Schedule Revisions On a monthly basis, the CM shall revise the Master Schedule, showing any adjustments made in accordance with this Article, by any Change Order, the progress of the Work, and any days gained or days lost with respect to any activity, and shall furnish copies thereof to the Owner and Designer. 4.9 Withholding Payment from CM jNot used] 4.10 Work by Owner If the CM, within a period of seven (7) working days after notice. that it is behind in a critical activity or is otherwise in default under this Agreement, shall not proceed in good faith and with reasonable speed to correct such delay or default in accordance with such notice, the Owner shall have full power and authority to take the prosecution of the Work out of the hands of the CM, to appropriate or use any or all materials and equipment at the Project as may be suitable and acceptable, and to enter into other agreements for the completion of the Work or pursue such other methods as in the Owner's reasonable discretion shall be necessary or appropriate for the completion of the Work. The Owner shall have the right to perform Work, hire and employ labor and craftsmen, rent equipment, subcontract with other parties, or do anything that the Owner deems necessary or appropriate to remedy or cure any delay or default by the CM in the progress of the Work. Such action by the Owner shall not, in any way, affect; void or limit any warranty, guaranty or other responsibility of the CM under the Contract Documents related to Work completed prior to Owner's take over of the project. Such action may be taken by the Owner only after seven (7) working days written notice to the CM. All costs incurred by the Owner in taking any such action shall be charged to the CM and deducted from any amounts due under the Agreement. 4.11 Force Maieure The CM may be entitled to an extension of the time for completion (but no increase in the Guaranteed Maximum Price) for delays arising from unforeseen causes beyond the control and without the fault or negligence of the Owner, the CM or the CM's Contractors as follows: 4.11.1 Acts of God, tornado, fire, hurricane or earthquake that damage completed Work or stored materials or make it hazardous, dangerous or impractical to perform the Work. 4.11.2 Acts of the public enemy; acts of the State, Federal, or local government in their sovereign capacities. 4.11.3 Abnormal inclement weather as defined in Paragraph 4.13. 4.12 Notice 16 The CM and the Contractors shall not be entitled to and hereby expressly waive any extension of time resulting from any condition or cause unless a claim for extension of time is made in writing to the Owner by the tenth (10th) day of the month folloving the month in which the instance of delay is encountered, except excessive inclement weather which shall be made in accordance with paragraph 4.13. All claims not filed in accordance with this Article shall be waived by the CM. Nothing herein shall apply to or be deemed a limitation on the CM's right to seek an adjustment to the Guaranteed Maximum Price for the limited reasons reserved in the Agreement of Intent. Circumstances and activities leading to such claim shall be indicated or referenced in a construction log for the day(s) affected. In every such written claim, the CM shall provide the following information: 4.12.1 Nature of the Delay; 4.12.2 Date {or Anticipated Date) Of Commencement of Delay: 4.12.3 Activities on the Progress Schedule affected by the delay, and/or new activities created by the delay and their relationship with existing activities; 4.12.4 Identification of person(s) or organization(s) or events(s) responsible for the delay; 4.12.5 Anticipated extent of the delay; and 4.12.6 Recommended action to avoid or minimize the delay 4.13 Weather Delavs On any day that the CM considers that the Project is delayed by adverse weather conditions, the CM shall identify in writing to the Designer and the Owner the adverse weather conditions affecting each activity, the specific nature of the activity affected, the number of hours lost, and the number of and identity (by responsibility or trade) of workers affected and shall obtain from the Designer written recognition of the delay. The time for performance of this Contract includes an allowance for a number of calendar days which may not be suitable for construction Work by reason of adverse weather. The Contract Time will be extended only if the number of calendar days of adverse weather recognized by the Designer exceeds the number of inclement weather days set forth below, and the CM clearly demonstrates how this adverse weather negatively impacts activities on the critical path of the Master Schedule. Month Number of Inclement Weather Days January 7 February 6 March 7 April 6 May 7 June 6 July 8 August 6 September 5 October 5 November 5 December 9 If the CM believes that the progress of the Work has been adversely affected by adverse weather recognized by the Designer during a particular month, the CM shall submit a written request for extension of time to the Designer. Such a request for time extension of the Contract Time shall be submitted by the tenth (10th) day of the month following that month in which the adverse weather is encountered. The request shall include, but is .not limited to, the following information: 4.13.1 Detailed description of weather's effect on scheduled activities and its net effect on the critical path of the Project, and 4.13.2 Weather records from the official weather station nearest the Project site and records of actual observation as contained in daily reports, correspondence, or other contemporaneously prepared documentation. 4.14 Damaaes for Delav The CM shall not be entitled to any adjustment in the Guaranteed Maximum Price or other compensation from the Owner for any delay in the completion of or progress on the Work unless caused by the sole and direct act or omission of the Owner and the Owner's employees or agents. 4.15 Liquidated Damages The CM specifically recognizes that a delay by the CM in achieving the Substantial Completion of the Project will necessarily cause damages, losses, and expenses to the 17 Owner, including, but not limited to and by way of illustration only, increased capitalized costs and interests for the Project, increased and extended Project overhead, Designer's and Consultant's fees, increased costs of construction, increased and extended operation costs of other facilities, and inefficiency and loss of productivity, and that such damages, losses, and expenses may not be readily identifiable or ascertainable at the time they are incurred or at any time. Therefore, and in recognition of these factors and the likelihood that actual damages from his delay will not be readily ascertainable, the CM agrees to pay to the Owner, as Liquidated Damages and not as a penalty, the sum of One Thousand Dollars ($1,000) as the Liquidated Damages per day, for each day by which the failure to meet the Substantial Completion Date shown in the Master Schedule, adjusted in accordance with this Article, delays the Substantial Completion of the Project. The sum for Liquidated Damages is the amount reasonably estimated in advance to cover the losses to be' incurred by the Owner by reason of failure of the CM to complete the Project within the time specified, such time being in the essence of this contract and a material consideration thereof. ARTICLE 5 CHANGES IN THE CONSTRUCTION MANAGER'S SERVICES AND ADDITIONAL COMPENSATION 5.1 Owner Changes The Owner, without invalidating this Agreement, may make changes in the CM's Services specified in Article 3 of this Agreement. The CM shall within ten (10) business days notify the Owner of any changes or other events which in the opinion of the CM entitle the CM to an increase or decrease in the Guaranteed Maximum Price, the duration of the CM's Services, or both. 5.1.1 Changes in the CM's Services Changes in the CM's Services may be directed by the Owner in writing, and if so directed to provide different or additional Services the CM shall comply with the directions of the Owner. Additional compensation shall be settled by a written amendment to this Agreement executed by the Owner and the CM. If possible, the amendment shall be executed by the Owner and CM prior to the CM pertorming the services required by the amendment, but failure to agree on compensation for a change in Services shall not be grounds for the CM to cease or refuse to provide the Services reasonably requested by the Owner. The CM shall proceed to perform the services required by the amendment only after receiving notice directing the CM to proceed. 5.1.2 Additional Compensation and Extended Duration The CM shall be entitled to receive additional compensation and additional time when the scope or planned duration of Services is increased or extended through the fault of the Owner. The CM shall notify the Owner within ten (10) business days after changes to the scope of the Project or a part thereof or after delays caused in whole or in part by the Owner increase or extend the scope or duration of the CM's Services. 5.1.2.1 Fixed Fee [Not used] 5.1.2.2 General Conditions [Not used] 5.1.2.3 Cost of the Work [Not used] 5.1.3 Payment of Additional Compensation The CM shall submit invoices for additional compensation with its invoice for Services and payment shall be made pursuant to the provisions of Article 7 of this Agreement. ARTICLE 6 OWNER'S RESPONSIBILITIES 6.1 Pro rcLam The Owner shall provide to the CM complete information regarding the Owner's requirements for the Project. 6.2 Decisions The Owner shall examine information submitted by the CM and shall render decisions thereto promptly. 6.31nsurance The Owner shall furnish the insurance that the Owner has agreed to furnish as specified in Article 8. 6.4 Notice of Nonconformities If the Owner observes or otherwise becomes aware of any fault or defect in the Project or nonconformity with the Contract Documents, the Owner shall give prompt written notice thereof to the CM. 18 6.5 Approvals The Owner shall furnish required information and approvals and perform its responsibilities and activities in a timely manner to facilitate orderly progress of the Work in cooperation with the CM, consistent with this Agreement, and in accordance with the planning and scheduling requirements and budgetary restraints of the Project. 6.6 Designer The Owner shall retain a Designer whose services, duties and responsibilities shall be described in a written agreement between the Owner and Designer. The services, duties, and responsibilities of the Designer set out in the agreemen# between the Owner and Designer shall be compatible and consistent with this Agreement and the Contract Documents. The Owner shall, in its agreement with the Designer, require that the Designer perform its services in cooperation with the CM, consistent with this Agreement and in accordance with the planning, scheduling and budgetary requirements of the Project as determined by the Owner. The terms and conditions of the agreement between the Owner and the Designer shall not be changed or waived without written notice to the CM provided at the time of the change or revision. 6.7 Budget [Not used] 6.8 Separate Contracts (Not used] 6.9 Copies of Drawinos and Specifications The CM shall estimate the reasonable number of copies of interim and final drawings, specifications and Contract Documents required by the CM, and shall obtain such copies from the Designer at the CM's expense. The estimated cost of such copies shall be included in the Guaranteed Maximum Price. 6.10 Permits and Approvals [Not used] 6.11 Fundino Requirements The Owner shall describe the funding for the Project to the CM and the Designer. The Owner, its representatives and consultants, including Designers, shall communicate with the Contractors only through the CM. 6.13 Copies of Notices and Communication The Owner shall send to the CM and shall require the Designer to send the CM copies of all notices and communications sent to or received by the Owner or Designer relating to the Project. 6.14 Owner's Representative The Owner shall designate, in writing, an officer, employee or other authorized representative to serve as the Owner's point of contact and to act in the Owner's behalf with respect to the Project. This representative shall be available during working hours and as often as may be required to render decisions and furnish information in a timely manner. The CM acknowledges that more than one individual might be designated as the Owner's representative at different times and for different purposes. The CM also acknowledges that some changes to this Agreement and to the Project might require authorization by the County Commissioners and execution by the County Manager in addition to the Owner's project representative. 6.15 Payment to CM The Owner shall make a lump sum payment to the CM upon the closing of the sale by the CM to the Owner pursuant to the Agreement of Purchase and Sale by and between the CM and the Owner of the Project property on the basis of the Contractor's payment applications that are certified by the CM and on the basis of the CM's invoice for its services performed that are certified by the Designer. ARTICLE 7 GUARANTEED MAXIMUM PRICE AND PAYMENT 7.1 Guaranteed Maximum Price The CM shall be required to give a Guaranteed Maximum Price for the Project. The Guaranteed Maximum Price shall be documented by the CM as defined in Article 12 and, once established, the Guaranteed Maximum Price shall be subject to modification only as defined in this Agreement and as otherwise provided in the Agreement of Intent. 7.1.1 Guaranteed Maximum Price Proposal 6.12 Communication with Contractors (Not used] 19 7.1.2 Consideration of Proposal [Not used] 7.1.3 Construction Contracts Construction contracts for the Work required for the Project shall be between the CM and Gontractors. The CM shall request and receive bids for each contract and shall advise the Owner with respect to award of a contract to the lowest responsive and responsible bidder. The CM shall enter into a contract with that bidder after receipt of approval of award from the Owner. 7.1.4 Work by CM All of the labor and materials for the Work of the Project as described in the Drawings and Specifications developed by the Designer shall be performed by Contractors, except as specifically provided in this paragraph. The CM may perform a portion of the Work only if (1) bidding produces no responsible, responsive bidder for that portion of the Work, no responsive, responsible bidder will execute a contract for the bid portion of the Work, or a Contractor defaults and a pre-qualified replacement cannot be obtained in a timely manner, and (2) the Owner approves performance of the Work by the CM, which approval shall not be unreasonably withheld. In the event the CM performs a portion of the Work under this paragraph, the CM shall be compensated as if it were a replacement Contractor and provided the CM's substituted construction services do not cause the Project cost to the Owner to exceed the Guaranteed Maximum Price. 7.1.5 Elements of the Guaranteed Maximum Price The Guaranteed Maximum Price shall include the total Cost of the Work, including the CM Fee for Services, the reimbursable costs for General Conditions provided by the CM, if any, and the CM Contingency, if any, all as defined herein. The Guaranteed Maximum Price includes the cost of all labor, equipment, supplies, materials, services and allowances to complete the Project. The Guaranteed Maximum Price shall be directly correlated to the specific design Drawings and Specifications in existence at the time the Guaranteed Maximum Price is prepared. The assumptions used in the preparation of the Guaranteed Maximum Price shall be identified by the CM in its Guaranteed Maximum Price proposal. 7.1.6 Sales and Use Taxes The Guaranteed Maximum Price includes those sales and use taxes applicable to the Project that are legally enacted at the time the Guaranteed Maximum Price is established. The CM shall require each Contractor to account for all sales and use taxes incurred as a condition to such Contractor's receiving final payment. Each such Contractor shall be required to maintain a ledger for sales and use taxes paid in the Project and hard copies of all applicable invoices. Any increase or decrease in the tax rate of such taxes that affect the Guaranteed Maximum Price and that are enacted after the Guaranteed Maximum Price is established shall be incorporated into that price by change order. 7.1.7 Change in Scope The Owner may change the scope of the Project or a part thereof and the Guaranteed Maximum Price shall then be adjusted as provided in Paragraph 7.3. 7.2 Cost of the Work [Not used] 7.2.1 Exclusions from Cost of the Work The Cost of the Work shall not include the following: 7.2.1.1 [Not used] 7.2.1.2 [Not used] 7.2.1.3 [Not used] 7.2.1.4 [Not used] 7.3 Adjustments to the Guaranteed Maximum Price The CM understands, confirms and agrees that its responsibility hereunder is to construct the Project in accordance with the Drawings and Specifications. It is recognized that the Guaranteed Maximum Price is based on complete design documents unless the Owner requests that the Guaranteed Maximum Price be fixed at an earlier stage in the design process, in which case the Guaranteed Maximum Price includes allowances. The CM shall notify the Owner if the CM believes that it is being asked to fix the Guaranteed Maximum Price on incomplete, ambiguous or under-developed drawings and specifications. In those instances in which the Drawings and Specifications are not fully developed at the time the Guaranteed Maximum Price is established, the CM shall exercise reasonable care and judgment to determine the intent 20 of the design and shall calculate the Guaranteed Maximum Price on the basis of the quality of construction, materials, and finishes that can be reasonably inferred from the design documents or other specified sources. The CM shall determine unit prices and the Cost of the Work and shall make those reasonable assumptions regarding the project scope and the quality of the intended construction as may be necessary to fully document the Guaranteed Maximum Price. 7.3.1 Changes to the Work The Owner may, at any time and for any reason, by written notice or order, make changes or modifications to the Work or add Work within the general scope of the Project, including without limitation changes to the Drawings and Specifications, the Master Schedule, the sequence, manner or method of pertorming the Work, or the work being provided by the Owner or its separate contractors. The amount of adjustment to increase or decrease the Cost of the Work resulting from a change in the Project shall be determined in one or more of the following ways: 7.3.1.1 By mutual acceptance of a lump sum, properly itemized and supported by cost data; or 7.3.1.2 By unit prices defined in a contract with a Contractor; or 7.3.1.3 By the cost of such Work determined on the basis of the cost records for the changed work. In the event actual costs are to be reimbursed, the CM shall keep and present in such form as may be agreeable to the Owner and Designer an itemized accounting together with appropriate supporting data of the actual Cost of the Work. 7.3.2 Directive to Proceed In the event the CM and the Owner cannot agree that an adjustment to the Guaranteed Maximum Price or the Master Schedule is warranted, or cannot agree on the compensation for a change in the Work or on an increase in the Guaranteed Maximum Price, the CM shall, if so directed by the Owner in writing, nevertheless proceed with the Work, and any adjustment to the Guaranteed Maximum Price shall be negotiated by the parties at a later date, utilizing the dispute resolution procedures under this Agreement if necessary. 7.3.3 Unit Prices If unit prices are utilized in the Guaranteed Maximum Price, the Guaranteed Maximum Price Proposal shall document the estimates on which the unit prices are based. If the CM later determines that the quantities on which unit prices are based will vary from the quantities utilized by the CM to fix the unit prices and calculate the- Guaranteed Maximum Price, the CM shall within ten (10) business days after determining that the quantities will vary from the estimates notify the Designer and the Owner in writing and forecast the amount of the variance. If the estimated quantities available to and used by the CM to establish the unit prices are so changed that application of the agreed unit prices to the quantities or work proposed cause substantial inequity to the Owner or the CM, the applicable unit prices and Guaranteed Maximum Price shall be adjusted. 7.3.4 Unforeseen Conditions Should the CM encounter unforeseen conditions at the Project site materially differing from those shown on the Drawings or indicated in the Specifications or differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Agreement, the CM shall immediately, and in no event more than ten (10) business days later, give notice to the Owner of such conditions before they are disturbed. The Owner and the Designer shall thereupon promptly investigate the conditions and if they find that they materially differ from those shown on the Drawings or indicated in the Specifications, they shall at once make such changes in the Drawings and/or Specifications as they may find necessary. Any increase or decrease in the Guaranteed Maximum Price resulting from such changes shall be adjusted in the manner provided herein for adjustments as to extra and/or additional Work and changes. However, neither the Owner nor the Designer shall be liable or responsible for additional work, costs, or changes to the Work that could have been reasonably determined from any reports, surveys, and analyses made available for the CM's review or that could have been discovered by the CM through the pertormance of its obligations pursuant to the Contract Documents. 7.3.5 Minor Chanoes The Designer shall have the authority to order minor changes in the Project consistent with the intent of the Drawings and Specifications and not involving an adjustment in the Guaranteed Maximum Price or change of the construction completion date. Such changes may be affected by written order only 7.4 Fixed Fee and General Conditions Costs [Not used] 21 7.4.1 Fixed Fees Claims under Workers' Compensation, disability benefits and [Not used] other similar employee benefits acts that are applicable to the Work performed; 7.4.2 General Conditions [Not used] Claims for damages. because of bodily injury, occupational sickness or disease or death of CM's employees under 7.4.2.1 [Not used] applicable employer's liability law; 7.4.2.2 [Not used] Claims for damages because of bodily injury or death of any person other than CM's employees; 7.4.2.3 [Not used] Claims for damages insured by usual personal injury liability 7.4.2.4 [Not used] coverage that are sustained by any person as a result of an offense directly related to the employment of such person by 7.4.2.5 [Not used] the CM or by any other person; 7.4.2.6 [Not used] Claims for damages, other than to the Work itself, because of injury to or destruction of tangible property, including loss or 7.4.2.7 [Not used] use therefrom; 7.4.2.8 [Not used] Claims for damages because of bodily injury or death of any person or property damage arising out of ownership, 7.4.2.9 [Not used] maintenance or use of any motor vehicle; and 7.4.3 Construction Manager's Accounting Records Claims for professional liability against any design professional [Not used] engaged by the CM or the Contractors as required by the Contract Documents for fabrication or installation of 7.4.4 Payments components of the Project. [Not used] The CM shall include similar requirements in all Contracts for 7.4.4.1 [Not used] Contractors, with limits and coverage terms acceptable to the Owner. 7.4.4.2 [Not used] 8.1.1 Coveraoe Limits 7.4.4.3 (Not used] Worker's Compensation shall be maintained with at least the minimum statutory limits. The CM's commercial general and 7.4.4.4 [Not used] motor vehicle liability insurance shall be written for not less than the following limits of liability: ARTICLE 8 INSURANCE AND INDEMNITY a. Commercial General Liability 8.1 CM Liability Insurance The CM shall purchase and maintain insurance that shall protect the CM from the claims set forth below that may arise out of or result from the CM's performance of services pursuant to this Agreement: 1. $2,000,000 Bodily Injury and Property Damage for each occurrence 2. $4,000,000 Products/Completed Operations Aggregate 3. $4,000,000 General Aggregate 22 Coverage shall include, but not be limited to, the following supplementary coverages: 1. Contractual Liability to cover liability assumed under the agreement 2. Product and Completed Operations Liability insurance 3. Broad Form Property Damage Liability insurance 4. Independent Contractors 5. Such policy shall include all of the coverages, which may be included in coverages A, B, and C contained in the Commercial General Liability Policy, without deletion. Such policy must be issued on an "occurrence" basis, as distinguished from a "claims made" basis. 6. Completed Operations extended five years after final payment 7. For contractors with design responsibility, endorsement CG22 80 and DIC for contractors' professional is requested b. Commercial Motor Vehicle Liabilitv 1. Minimum Combined Single Limit that shall not be less than $1,000,000 per occurrence 2. Commercial Automobile Liability insurance to cover all vehicles owned by, hired by, or used on behalf of the Contractor c. Excess/Umbrella Liability 1. $5 Million per Occurrence 2. $5 Million Aggregate 8.1.2 Policies Commercial general liability insurance may be arranged under a single policy for the full limits required or by a combination of underlying policies with the balance provided by an excess or umbrella liability policy. The Owner shall be a named insured on all commercial general liability policies submitted to comply with this Article. Commercial general liability and excess liability policies shall be endorsed with a schedule of underlying liability policies required and obtained from the Contractors. Coverage under the CM commercial liability policies shall not be limited by any language in the contracts with the Contractors making the Contractors liable for losses in excess of the limits of coverage provided by the Contractors. 8.1.3 Professional Liabilitv Policies [Not Used.] 8.1.4 Cancellation The foregoing policies shall contain a provision that coverages afforded under the policies shall not be cancelled or expire until at least thirty (30) days written notice has been given to the Owner and shall include either a liability endorsement covering this Agreement or an endorsement making the Owner an additional insured under the policies. Certificates of Insurance showing such coverages to be in force shall be filed with the Owner contemporaneously with execution of this Agreement or any relevant Contractor contract. 8.2 Builder's Risk Insurance The CM shall be responsible for purchasing and maintaining insurance satisfactory to the Owner to protect the Project from perils of physical loss. The Owner shall receive copies of the builder's risk insurance policies that satisfy this Article. The CM shall be responsible for any deductibles associated with this coverage. 8.2.1 Coverage Terms The insurance shall provide for the cost of replacement for the Work at the time of any loss. The insurance shall include as named insureds the Owner, the CM, the Contractors and their subcontractors and shall insure against the loss from the perils of fire and all risk coverage for physical loss or damage due to theft, vandalism, collapse, malicious mischief, transit, flood, earthquake, testing, or damages resulting from defective design, negligent workmanship or defective material. The CM shall obtain approval from the Owner before increasing any coverage due to increases in construction costs. 8.2.2 Other Property Insurance [Not used] 8.2.3 Partial Occuoancv: If the Owner occupies or uses a part or parts of the Project prior to substantial completion thereof, such occupancy shall not occur until the Owner obtains property insurance for the structure. 8.2.4 Notices and Recovery 23 If requested by the Owner, the CM shall provide the Owner with copies of all policies thus obtained for the Project. The CM shall provide the Owner with thirty (30) days advance notice of cancellation, non-renewal or endorsement reducing or restricting coverage. 8.2.5 Waiver of Subrogation The Owner and the CM waive all rights against each other and against the Contractors, consultants, agents and. employees of the other for damages occurring during construction and covered by builder's risk and any property insurance required for this Project, excluding the Owner's property insurance. The Owner and the CM shall each require appropriate similar waivers from their contractors, consultants and agents. This waiver does not apply to design liability 8.3 Indemnity To the fullest extent permitted by law, the CM shall indemnify and hold harmless the Owner, its employees, agents (including the Designer), officers, directors and partners from and against any and all damages and reasonable attorneys' fees incurred by the Owner proximately by the negligent acts, errors or omissions of the CM, or any other party for whom the CM is legally liable, in performance of services under this Agreement. The CM shall not be required to indemnify any person against losses resulting from a breach of contract or resulting from negligence, misconduct or violation of laws on the part of any person indemnified hereunder. The CM shall procure and maintain insurance as required by and set forth in this Agreement. 8.3.1 Indemnification by Designer The Owner shall cause the Designer to indemnify and hold harmless the Owner, its employees, agents and representatives to the same extent and in the same manner that the CM has provided indemnification for the Owner under Paragraph 8.3. 8.3.2 Indemnification by Contractors The CM shall cause each Contractor to indemnify and hold harmless the Owner, CM and Designer from and against any and all claims, demands, suits, damages, including consequential damages and damages resulting from personal injury or property damage, costs, and expenses and fees that are asserted against the Owner, CM and the Designer and that arise out of or result from negligent acts or omissions or the breach of the Construction Contract by the Contractor, its employees, agents and representatives in performing the Work. 8.4 Bonds The CM shall purchase and provide 100% Performance and Payment Bonds, which Bonds shall comply with the requirements of the General Conditions of the Orange County Contract for Construction--Construction Manager at Risk. ARTICLE 9 TERMINATION AND SUSPENSION 9.1 Termination for Convenience [Not used] 9.2 Termination for Default This Agreement may be terminated by either party hereto upon ten (10) working days written notice should the other party fail substantially to perform in accordance with the terms hereof through no fault of the terminating party or if the Project in whole or substantial part is stopped for a period of one hundred twenty (120) consecutive days under an order of any court or other public authority having jurisdiction or as a result of an act of government. Without in any way limiting the scope of this Paragraph 9.2, the Owner may terminate this Agreement if the CM fails to begin or complete the Work within the time specified for completion in this Agreement as the same may be amended by change order, or shall commit a material breach in the performance of the Work or shall discontinue the prosecution of the Work for seven (7) consecutive work days without excuse or justification, or if the CM shall become insolvent, be declared bankrupt, commit any act of bankruptcy or insolvency, allow any final judgment to stand against the CM or its affiliated companies unsatisfied for a period of forty-eight (48) hours, make an assignment for the benefit of creditors, or for any other cause whatsoever shall not carry on the Work in an acceptable manner. Termination under this Paragraph 9.2 for failure substantially to perform in accordance with the terms of this Agreement shall be without prejudice to any other right or remedy that the terminating party has under the Agreement or at law. 9.2.1 Notice and Time for Cure Neither party to this Agreement may terminate this Agreement without first giving the other party ten (10) business days notice of the intent to terminate the Agreement, measured from 24 actual receipt of the notice. If the grounds for termination stated in the written notice are removed or cured within ten (10) business days after receipt of notice, the Agreement may not be terminated for default. 9.2.2 Payment to the CM In the event of termination pursuant to Paragraph 9.2, the CM shall be paid a reasonable pro-rata portion of the Guaranteed Maximum Price, based on the percentage of such incomplete services actually completed prior to the date of termination including materials purchased or stored but not yet incorporated into the Work, less any amount by which the total cost paid by the Owner to complete the Work for which the CM is responsible, including reasonable Fees and General Conditions, exceeds the Guaranteed Maximum Price. In addition, the Owner may deduct from the final payment to the CM any liquidated damages or other damages for which the CM is liable under this Agreement. No payment shall be due under this Paragraph until the Project is finally complete and all rights and claims by Contractors for work on the Project have been settled and paid. 9.2.3 Assignment of Contracts In the event of termination pursuant to Paragraph 9.2, all construction and supply contracts between the CM and all Contractors and other suppliers for the Project shall be immediately assignable to the Owner, at the option of the Owner, on the same terms and conditions applicable to the CM under those contracts. The CM shall obtain the consent of each Contractor and supplier, in their respective contracts with the CM, to this assignment. 9.3 Additional Termination Provisions In the event of termination under either Paragraph 9.1 or 9.2, the CM agrees to: deliver to the Owner all Project as-built records, operating manuals, warranties and other Project information generated to date; deliver to the Owner copies of all shop drawings and. other submittals received to date; convey to the Owner or its designees title to all materials, supplies, partially or wholly fabricated parts and components, and any other property acquired by the CM for the Project; and provide the Owner with copies of all pending claims under the CM builder's risk policy. 9.4 Suspension The Owner may order, in writing, the CM to suspend all or any part of the CM's services for the Project for the convenience of the Owner or for work stoppage beyond the control of the Owner or the CM. If the performance of all or any part of the services for the Project is suspended, an equitable adjustment in the Guaranteed Maximum Price shall be made and this Agreement shall be modified accordingly by written change order. 9.4.1 General Conditions [Not used] 9.4.2 Reassignment of Personnel Persons assigned to another project during such suspension or period and not available to return to this Project upon cessation of the suspension shall be replaced. The Owner shall reimburse the CM for reasonable costs incurred in relocating staff persons returning to the Project or new persons assigned to the Project. 9.4.3 Protracted Suspension If the Project is suspended by the Owner for more than one hundred twenty (120) consecutive days, the CM shall have the option of requiring that the Guaranteed Maximum Price be adjusted by written change order so that the CM suffers no loss or diminution in expectancy by virtue of such suspension. Subject to the provisions of this Agreement relating to termination, a delay or suspension of the Project does not void this Agreement. 9.4.4 Additional Compensation to Contractors The CM shall include provisions in its contracts with Contractors substantially the same as this Paragraph 9.4, allowing for suspension of the Project by the Owner, and providing that suspension shall not be grounds for termination of the contracts except on the terms set forth in this Agreement. If the Owner suspends the Project for reasons other than default by the CM or any of its Contractors, the Guaranteed Maximum Price will be adjusted by an amount sufficient to reimburse the reasonable and provable expenses incurred by the Contractors as a result of the suspension. In no event will the Guaranteed Maximum Price be increased or any expenses be paid to the CM or its Contractors for delays caused by the 25 CM or any Contractor, unless there is a concurrent delay or suspension by the Owner, it being understood that the CM bears the risk of delays caused by its Contractors. ARTICLE 10 DISPUTE RESOLUTION The laws of the State of North Carolina shall apply to the interpretation and enforcement of this Agreement. Any and all suits or actions to enforce, interpret, or seek damages with respect to any provision of, or the performance or nonperformance of, this Agreement shall be brought in the General Court of Justice of North Carolina sitting in Orange County, North Carolina, and it is agreed by the parties that no other court shall have jurisdiction or venue with respect to such suits or actions. Appendix A to this Agreement shall be a part of the Contract Documents. Prior to initiating an action under this Paragraph, any party to this Agreement shall initiate the mediation process as provided in Appendix A to this Agreement. Any person or firm that expressly or impliedly agrees to perform labor or services or to provide material, supplies, equipment, work, performance or payment bonds, insurance or indemnification for the construction of the Project or the Work shall be deemed a party to this Agreement solely for the purpose of this Article 10. The CM, by means of its. contracts, shall specifically require its Contractors to be bound by this Article. ARTICLE 11 ADDITIONAL PROVISIONS 11.1 Confidentiality The CM will keep confidential and not disclose to any third party all information designated and marked by the Owner as "Confidential" unless required to disclose the information by law. Furthermore, the CM shall not disclose publicly information concerning the Project, except for communications incident to completion of the Project between the CM, Designer, and Contractor, and their independent professional engineers, architects and other consultants and subcontractors, and except for information publicity approved by the Owner and communications in connection with filings with governmental bodies having jurisdiction over the design or construction of the Project. 11.2 Signs The CM shall be permitted to erect one sign to identify the CM and other Project participants. The identification sign shall be of sound construction, shall be neatly lettered, and shall be subject to approval by the Owner. The Contractor may only erect other identification signs if approved by the Owner. In addition to the identification sign, directional signs may be erected on the property to facilitate deliveries and the movement of personnel and materials about the site. Any directional signs shall be subject to approval of the Owner with respect to size, style and location of such directional signs, which approval shall not be unreasonably withheld. Such signs may bear the name of the CM and a directional symbol. All signs must comply with Town of Hillsborough sign, appearance and traffic ordinances. No other signs will be permitted except by permission of the Owner. 11.3 Limitation and Assionment The Owner and the CM each bind itself, its successors, assigns, insurers, and legal representatives to the terms of this Agreement: Neither the Owner nor the GM shall assign or transfer its rights or interest in this Agreement without the written consent of the other, except that the CM may assign accounts receivable to a commercial bank for securing loans without approval of the Owner. However, nothing contained in this paragraph will prevent the CM from employing Contractors or such consultants, associates or subcontractors as the CM may deem appropriate to assist in performance of the services and of the Work hereunder in accordance with this Agreement. 11.4 Minority Business Enterprise Program The CM shall at all times comply with the edition of the Orange County Minority Business Enterprise Policy in effect at the effective date of this Agreement. All documentation substantiating compliance with the requirements of this program shall be delivered to the Owner as stipulated in the Contract Documents. A copy of the Orange County Minority Business Enterprise Policy is attached to this Agreement as Appendix C, and shall be included in the bid documents submitted to potential Contractors for bids. 11.5 Extent of Agreement This Agreement and all other agreements or instruments expressly referenced herein represent the entire and integrated agreement between the Owner and the CM and supercedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified or amended 26 only by written directives, change orders and other instruments signed by the Owner and the CM as expressly set forth in the Agreement. Nothing contained in this Agreement is intended to benefit any third party. The Contractors and Designer are not intended third party beneficiaries of this Agreement. 11.6 Severability If any provision of this Agreement is held as a matter of law. to be unenforceable, the remainder of this Agreement shall be enforceable without such provision. 11.7 Meaning of Terms References made in the singular shall include the plural and the masculine shall include the feminine or neuter. To the greatest extent possible, the meaning of terms used herein shall be consistent with the definitions expressed in the Contract Documents, Designer agreement, and the Contractor contracts. 11.8 Notices Whenever any provision of the Contract Documents requires the giving of written notice, it shall be deemed to have been validly given if delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended or if delivered or sent by registered or certified mail, postage prepaid, addressed as follows: To the Owner: Orange County, North Carolina Attn: Pam Jones, Director of Purchasing and Central Services Post Office Box 8181 Hillsborough, North Carolina 27278 with a copy to: Geoffrey E. Gledhill Coleman, Gledhill, Hargrave & Peek, P.C. 129 E. Tryon Street P. O. Drawer 1529 Hillsborough, NC 27278 To the CM: Telesis Construction Management, LLC Attn: George A. Horton, III, Member/Manager 1000 Corporate Drive, Suite 109 Hillsborough, North Carolina 27278 William D. Bernard Brown & Bunch, PLLC 101 N. Columbia Street Chapel Hill, NC 27514 11.9 Bonds In accordance with N.C. Gen. Stat. §143-128.1, the CM shall provide a performance bond with a penal sum equal to 100% of the Guaranteed Maximum Price to guarantee the faithful performance of the Work, in such form as may be required by law and approved by the Owner. In accordance with N.C. Gen. Stat. §143-128.1, the CM shall provide a payment bond with a penal sum equal to 100% of the Guaranteed Maximum Price to guarantee the payment of all labor and material costs or claims in connection with compliance with the Contract, in such form as may be required by law and approved by the Owner. These bonds shall be dated the same date as the Agreement and must be accompanied by a current copy of the power of attorney for the attorney-in-fact executing such bond on behalf of a surety company licensed to do business in the state of North Carolina and reasonably acceptable to the Owner. In its Guaranteed Maximum Price, the CM shall include a program and costs for bonds or other security against default by Contractors as the CM deems appropriate to protect the CM and the Owner against such defaults. 11.10 Ownership of Documents The CM shall be entitled to maintain possession of a reasonable number of sets of Contract Documents and record documents during and after the completion of the Project for its records. The CM shall not reproduce or distribute such documents to any third person or for any purpose other than bidding, permitting and construction of the Project, or enforcing its rights under this Agreement. The CM shall have no copyright or other rights in the documents, or other rights to use the documents. ARTICLE 12 SPECIAL GUARANTEED MAXIMUM PRICE PROVISIONS with a copy to: 12.1 Guaranteed Maximum Price 27 Pursuant to this Agreement and for the Project defined in Article 2, the Owner and the CM agree that the Guaranteed Maximum Price for the Project is the total of the two Guaranteed Maximum Prices as defined in the Agreement of Purchase and Sale (Library Building) and the Agreement of Purchase and Sale (Office Building). 12.1.1. Documentation The Guaranteed Maximum Price documentation shall be prepared by the CM and submitted to the Owner with the Guaranteed Maximum Price Proposal. The documentation shall at a minimum describe the Contract Documents on which the Guaranteed Maximum Price Proposal is based, and set forth the cost elements of the Guaranteed Maximum Price in detail. The documentation may include drawings, sketches, specifications, calculations or other data used to identify the basis of the Guaranteed Maximum Price. Documentation of the Guaranteed Maximum Price was developed by the CM from the design Drawings and Specifications and such other documents as may be described in the Proposal. 12.1.2 Budaet Items The documentation of the Guaranteed Maximum Price shall include a detailed cost tabulation with at least the elements described in the Listing of Cost Elements in Appendix B. 12.1.3 CM Continaencv The Guaranteed Maximum Price shall include a contingency amount (the Contingency) for the use of the CM. The Contingency shall be included in the Guaranteed Maximum Price. The Contingency is for the use of the CM to defray costs in excess of the Cost of the Work for which the CM is not otherwise entitled to an increase in the Guaranteed Maximum Price under the terms of this Agreement. 12.1.3.1 [Not used] 12.1.3.2 [Not used] 12.1.3.3 [Not used] 12.1.3.4 [Not used] 12.1.4 Construction Contract Price Savings and Overruns [Not used] 12.1.4.1 [Not used] 12.1.4.2 [Not used] 12.1.4.3 [Not used] 12.1.5 Chanae of Contractor Ordered by Owner If the Owner decides to award a contract to a bidder other than the lowest responsible and responsive pre-qualified bidder for any potion of the Project, and if the CM consents to the Owner's decision to do so in writing, the Guaranteed Maximum Price shall be increased by the amount of the difference between the award price and the price submitted by the lowest responsible and responsive bidder. Nothing herein shall abrogate the CM's right to approve the bidders selected to perform the Work. 12.1.6 Costs in Excess of Guaranteed Maximum Price In the event that the sum of the Cost of the Work exceeds the Guaranteed Maximum Price and any adjustments therein as may be due pursuant to the terms hereof or the Agreement of Intent, the CM shall continue to perform at no additional cost to the Owner until the Project, defined by this Agreement and all Attachments hereto, is complete. The CM shall be responsible for paying all costs in accordance with the terms of this Agreement that may be necessary to complete the Project, even if such amounts .are in aggregate in excess of the Guaranteed Maximum Price. This Agreement is executed the day and year first written above. CM: Telesis Construction Management, LLC Corporate Drive, Suite 109 Ilsbo~augh, NC 7 By~ ~. George A. Horton, III Title: '~-Le.1-r~~..~~~{~gry,.nrv,t~~ Member/Manager Attest: By: ~~~ ~ Title: w-LnMQ/Y3- (Secretary) (Manager) (Witness) 28 OWNER: Orange County P. O. Box 8181 Hillsborough, NC 27278 C~, By: ry Jacobs, air Orange Co Board o aiil~~ioners Attest: Don Cler to the Board This instrument has been pre-audited in the manner required by the loyal ~overr#nent Budget and Fiscal Control Act. 088Orange County Library and Office Complex doc includes chgs since 62607 final version approved by BOCC 11508 29 t~~~ APPENDIX A TO AGREEMENT FOR CONSTRUCTION MANAGEMENT SERVICES DISPUTE RESOLUTION PROCEEDURES FOR ORANGE COUNTY BUILDING CONSTRUCTION RENOVATION AND REPAIR PROJECTS Table of Rules Rule 1. Initiating Mediated Settlement Conferences A. Purpose of Mandatory Settlement Conferences B. Initiating the Dispute Resolution Process 2. Selection of Mediator A. Mediator Listing B. Selection of Mediator C. Disqualification of Mediator 3. The Mediated Settlement Conference A. Where Conference is to be Held B. When Conference is to be Held C. Request to Modify Deadline for Completion D. Recesses E. Project Delay 4. Duties of Parties and Other Participants in Formal Dispute Resolution Process A. Attendance B. Finalizing Agreement C. Payment of Mediation Fee D. Failure to Compensate Mediator 5. Authority and Duties of Mediators A. Authority of Mediator B. Duties of Mediator 6 Compensation of the Mediator 7. Rule Making 8. Definitions 9. Time Limits Page 1 of 6 RULE 1. INITIATING MEDIATED SETTLEMENT CONFERENCES A. Purpose of Mandatory Settlement Conferences. Pursuant to G.S. §143-128(fl) and 143-135.26(11), these Rules are promulgated to implement a mediated settlement program designed to focus the parties' attention on settlement rather than on claim preparation and to provide an opportunity for orderly settlement negotiations to take place. Nothing herein is intended to limit or prevent the parties from engaging in settlement procedures voluntarily at any time prior to or during commencement of the dispute resolution process. B. Initiating the Dispute Resolution Process 1) Any party to a County public construction contract (referred to herein generally as the "Contract") governed by Article 8. Ch. 143 of the General Statutes and identified in G.S. § 143-128(fl) and who is a party to a dispute arising out of the Contract and the construction process in which the amount in controversy is at least $15,000 may submit a written request to the County for mediation of the dispute. 2) Prior to submission of a written request for mediation to the County, the parties should give notice of any and all claims in accordance with their respective contracts, obtain decisions on the claims as required or allowed by their respective contracts, and attempt to resolve the dispute according to the terms and conditions in their respective contracts. The Mediator may adjourn any mediated settlement conference if the Mediator believes, in his or her sole discretion, that the parties have not satisfied all of the terms and conditions of their respective contracts and that doing so will enhance the prospects for a negotiated settlement. C. Condition Precedent to Litigation. Before any party to a Contract may commence a civil action against the County seeking remedies for breach or non- performance of the Contract by the County, said party must first initiate the dispute resolution process under these rules and attend the mediated settlement conference. This requirement shall not apply to the filing of claims or service of notices necessary to preserve lien rights. RULE 2. SELECTION OF MEDIATOR A. Mediator Listing. A list of Mediators acceptable to the County is attached to and incorporated by reference into these Rules. The party requesting mediation shall select a Mediator from the designated list. If the County fails to provide a list of acceptable mediators, the list of Mediators shall be deemed to be the list of mediators certified by the North Carolina Dispute Resolution Commission to conduct mediated settlement conferences in the North Carolina Superior Courts. B. Selection of a Mediator. The party requesting mediation shall select a Mediator from the County's list of Mediators and shall file, with the County, a Notice of Selection of Mediator within 21 days of the request for mediation. Such notice shall state the name, address, and phone number of the Mediator selected. If the Page 2 of 6 Mediator selected is not available or declines to participate for any reason, the requesting party shall select another person from the County's list of Mediators. If the party requesting mediation does not select and designate a mediator within 21 days of the request for mediation, the County shall have the right in its absolute discretion to appoint a mediator from its list of Mediators. C. Disqualification of Mediator. Any party may request replacement of the Mediator for good cause. Nothing in this provision shall preclude Mediators from disqualifying themselves. RULE 3. THE MEDIATED SETTLEMENT CONFERENCE A. Where Conference is to be Held. Unless all parties and the Mediator otherwise agree, the mediated settlement conference shall beheld in the County. The Mediator shall be responsible for reserving a place, making arrangements for the conference, and giving timely notice of the time and location of the conference to all attorneys, unrepresented parties and other persons or entities required to attend. B. When Conference is to be Held. The mediation shall be completed within 90 days after selection of the Mediator. C. Request to Accelerate or Extend Deadline for Completion. Any party or the Mediator may request the County to accelerate or extend the deadline for completion of the conference. Such request shall state the reasons the extension is sought and shall be served by the moving party upon the other parties and the Mediator. Objections to the request must be promptly communicated to the County and to the Mediator. The County, with the concurrence of the designated Mediator, may grant the request by adjusting the time for completion of the conference. D. Recesses. The Mediator may recess the mediation conference at any time and may set times for reconvening. If the Mediator determines the time and place where the conference is to reconvene before the conference is recessed, no further notice is required to persons present at the conference. E. Project Delay. The mediated settlement conference that results from a construction contract dispute shall not be cause for the delay of the construction project. RULE 4. DUTIES OF PARTIES AND OTHER PARTICIPANTS IN FORMAL DISPUTE RESOLUTION PROCESS A. Attendance. 1. All parties to the dispute must designate an official representative to attend the mediation. Page 3 of 6 2. "Attendance" means physical attendance, not by telephone or other electronic means. Any attendee representing a party must have authority from that party to bind it to any agreement reached as a result of the mediation. 3. Attorneys representing parties may attend the mediation, but are not required to do so. 4. Sureties and insurance company representatives are required to physically attend the mediation unless the Mediator and all of the other parties to the mediation excuse their attendance or consent to their attendance by telephone or other electronic means. The parties who attend a duly scheduled mediation conference shall have the right to recover their share of the Mediator's compensation from any party or parties who fail to attend the conference without good cause. B. Finalizing Agreement. If an agreement is reached in the conference, the terms of the agreement shall be confirmed in writing and signed by all parties. C. Mediation Fees charged by the Mediator shall be paid in accordance with G.S. 143-128(fl). D. Failure to compensate Mediator. Any party's failure to compensate the Mediators in accordance with G.S. § 143-128(fl) shall subject that party to a withholding of said amount of money from the party's monthly payment by the County. Should the County fail to compensate the Mediator, it shall hereby be subject to a civil cause of action from the Mediator for the 1/3 portion of the Mediator's total fee as required by G.S. § 143-128(fl). RULE 5. AUTHORITY AND DUTIES OF MEDIATORS A. Authority of Mediator. 1. Control of Conference. The Mediator shall at all times be in control of the conference and the procedures to be followed. 2. Private Consultation. The Mediator may communicate privately with any participant or counsel prior to and during the conference. The fact that private communications have occurred with a participant shall be disclosed to all other participants at the beginning of the conference. Scheduling the Conference. The Mediator shall make a good faith effort to schedule the conference at a time that is convenient with the participants, attorneys and Mediator. In the absence of agreement, the Mediator shall select the date for the conference. Page 4 of 6 4. Determining good cause for a party's failure to appear at a scheduled mediation conference. B. Duties of Mediator. 1. The Mediator shall define and describe the following at the beginning of the conference: a. The process of mediation. b. The difference between mediation and other forms of conflict resolution. c. The costs of the mediated settlement conference. d. That the mediated settlement conference is not a trial, the Mediator is not a judge, and the parties retain their legal rights if they do not reach settlement; however, the Mediator will advise all parties that failure to appear at mediation without good cause may result in imposition of sanctions and maybe asserted as a bar to lawsuits by claimants who have failed to exhaust this administrative remedy. e. The circumstances under which the Mediator may meet and communicate privately with any of the parties or with any other person. f. Whether and under what conditions communications with the Mediator will be held in confidence during the conference. g. The inadmissibility of conduct and statements as provided by G.S. §7A-38.1(1). h. The duties and responsibilities of the Mediator and the participants. i. That any agreement reached will be reached by mutual consent. 2. Disclosure: The Mediator has a duty to be impartial and to advise all participants of any possible bias, prejudice or partiality. 3. Declaring Impasse: The Mediator may determine at any time during the mediation conference that an impasse exists and that the conference should end. 4. Reporting Results of Conference. The Mediator shall submit a written report to the County and the other parties within 10 days of the conference stating whether or not the parties reached an agreement. The Mediator's report shall indicate the absence of any party from the mediated settlement conference without permission or good cause. Scheduling and Holding the Conference. It is the duty of the Mediator to schedule the conference and conduct it prior to the deadline of completion set by the rules. The Mediator shall strictly observe deadlines for completion of the conference unless said time limit is changed by agreement of the parties. RULE 6. COMPENSATION OF THE MEDIATOR Page 5 of 6 A. The parties shall compensate the Mediator for mediation services at the rate proposed by the Mediator and agreed to by the parties at the time the Mediator is selected. RULE 7. RULE MAHING A. These Rules maybe amended by the County at any time. Amendments will not affect mediations where claims and/or requests for mediation have been filed at the time the amendment takes effect RULE 8. DEFINITIONS A. "County" shall mean Orange County, North Carolina B. "Project Designer" is that person or firm stipulated as project designer in the Contract Documents for the project. C. "Claim" is a demand or assertion by a party seeking adjustment or interpretation of Contract terms, payment of money, extension of time or other relief with respect to the terms of the Contract. The term "Claim" also includes other disputes and matters in question between the parties to a Contract involved in the County's building construction renovation and repair projects arising out of or relating to the Contract ar the construction process. Claims must be initiated by a written notice. The responsibility to substantiate Claims shall rest with the party making the Claim. D. "Good Cause" generally includes any circumstance beyond the control of a party, which prevents that party from meeting obligations. When good cause is asserted as an excuse for a party's failure to appear at a mediation conference or to otherwise comply with the requirements of these Rules, the Mediator, in his or her sole discretion, will determine whether good cause exists to excuse the party's failure to appear or otherwise comply with these rules. RULE 9. TIME LIMITS A. Any time limit provided for by these Rules maybe waived or extended at the sole discretion of the County, if no Mediator has been selected, and at the discretion of the County with concurrence of the Mediator if a Mediator has been selected. F:\Lisa\orangecounty\0890range County Library and Office Complex Appendix A final version approved by BOCC 11508.doc Page 6 of 6 APPENDIX C TO AGREEMENT FOR CONSTRUCTION MANAGEMENT SERVICES MINORITY BUSINESS ENTERPRISE POLICY APPENDIX C MBE CONTRACT PROVISION (CONSTRUCTION) APPLICATION: The requirements of the Guidelines For Recruitment And Selection Of Minority Business are hereby made a part of these contract documents. These requirements shall apply to all contractors regardless of ownership. MBE SUBCONTRACT GOALS: The goals for participation by Minority firms as subcontractors on this project have been set at ten (10%). The Bidder will provide documented proof in the form of Attachment I, MBE UTILIZATION COMMITMENT, that these goals have been met or exceeded; OR Provide Attachment I, MBE UTILIZATION COMMITMENT, identifying the amount of MBE participation; and, prior to award, upon request, show evidence of good faith effort made prior to the bid opening to meet these goals; OR Provide Attachment III, CERTIFICATION REGARDING SUBCONTRACTING PRACTICES, and upon request, information sufficient for the Owner to determine that the Bidder does not customarily subcontract work on this type project. It is desired that the above information be submitted with the bid. Although bids maybe read without the form attached, no consideration will be given to any bid relative to award of contract until the required forms and supporting data are in the hands of the Owner. MINIMUM COMPLIANCE REQUIREMENTS: If the MBE subcontract goals are not achieved, the Bidder shall provide the following documentation to the Owner. 1. MBE Utilization Commitment (Attachment I). 2. Documentation of the Bidder's good faith efforts to meet the goals set forth in these provisions (upon request prior to award). This documentation shall include an affidavit that certifies that the Bidder has taken at least five (5) of the following ten (10) good faith steps to procure MBEs, and it should also list which steps were taken: 1. Contacted minority businesses that reasonably could have been expected to submit a quote and that were known to the contractor or available on these State or local government maintained lists at least ten (10) days before the bid or proposal date and notifying them of the nature and scope of the work to be performed. 2,. Made the construction plans, specifications, and requirements available for review by prospective minority businesses, or providing these documents to them at least ten (10) days before the bid proposals are due. 3. Broke down or combined elements of work into economically feasible units to facilitate minority participation. 4. Worked with minority trade, community, or contractor organizations identified by the Office of Historical Underutilized Businesses and included in the bid documents that provided assistance in recruitment of minority businesses. 5. Attended any prebid meetings scheduled by the public owner. 6. Provided assistance in getting required bonding or insurance or providing alternatives to bonding or insurance for subcontractors. 7. Negotiated in good faith with interested minority businesses and did not reject them as unqualified without sound reasons based on their capabilities. Any rejection of a minority business based on lack of qualifications should have the reasons documented in writing. 8. Provided assistance to an otherwise qualified minority business in need of equipment, loan capital, lines of credit, or joint pay agreements to secure loans, supplies, or letters of credit, including waiving credit that is ordinarily required. Assisted minority businesses in obtaining the same unit pricing with the bidder's supplier in order to help the minority businesses in establishing credit. 9. Negotiated joint venture and partnership arrangements with minority businesses in order to increase opportunities for minority business participation on a public construction or repair project when possible. 10. Provide quick pay agreements and policies to_enable minority. contractors and suppliers to meet cash flow demands. This documentation shall include the following evidence: A. Copies of solicitations for quotes to at least three (3) MBE firms from the source list provided by the State for each subcontract to be let under this contract (if 3 or more firms. are shown on the source list). Each solicitation shall contain a specific description of the work to be subcontracted, location where bid documents can be reviewed, representative of the Prime Bidder to contact, and location, date and time when quotes must be received. B. Copies of quotes or responses received from each firm responding to the solicitation. C. A telephone log of follow-up calls to .each firm sent a solicitation. D. For subcontracts where an MBE firm is not considered to be the lowest responsible sub bidder, copies of quotes received from all firms submitting quotes for that particular subcontract. E. Documentation of any contracts, correspondence or conversation with MBE firms made in an attempt to meet the goals. NOTE: If the Bidder provides sufficient evidence (listed in #A) that the goals stated in the contract documents have been met, or awards all subcontracts to MBE's, the documentation listed in B will not be required. Upon being named apparent low bidder, the Bidder shall provide a Letter of Intent (Attachment II), complete with a description of the scope of services and dollar value from each MBE firm proposed for use in this contract. Failure to provide the documentation as listed in these provisions may result in rejection of the bid and award the next lowest responsible and responsive bidder. The Owner reserves the right to waive any irregularities in MBE documentation if they can be resolved prior to award of the contract, and the Owner finds it to be in its best interest to do so and award the contract. PROGRAM COMPLIANCE REQUIREMENTS: All written statements, certifications or intentions made by the Bidder shall become a part of the agreement between the Contractor and the County of Orange for performance of this contract. Failure to comply with any of these statements, certifications or intentions, or with the MBE Guidelines shall constitute a breach of the contract. A finding by the Owner that any information submitted either prior to award of the contract or during the performance of the contract is inaccurate, false or incomplete, shall also constitute a breach of the contract. Any such breach may result in termination of the contract in accordance with the termination provisions contained in the contract. It shall be solely at the option of the Owner whether to terminate the contract for breach. ATTACHMENT I OR II MUST BE SUBMITTED WITH BID ATTACHMENTI MBE UTILIZATION COMMITMENT We, do certify that on the (Bidder) HVAC SYSTEM REPLACEMENT RICHARD E. WHITTED HUMAN SERVICES CENTER AND CENTRAL RECREATION BUILDING (Dollar Amount of Bid) Wil expend a minimum of % of the total dollar amount of the contract with minority business enterprises. This Rercenta~e must be at least ten percent (10%), or the bidder must complete the back side of this form as well. MBE's will be employed as construction subcontractors, vendors, suppliers or providers of professional services. Such work will be subcontracted to the following firms listed below. If the bidder intends to subcontract, this form must be completed regardless of the amount or lack of participation attained. Name and Phone Indicate Description Number of Firm MBE of Work Dollar Value The undersigned will enter into a formal agreement with Minority Firms for work listed in this schedule, conditional upon execution of a contract with the County of Orange. Failure to fulfill this commitment may constitute a breach of the contract. The undersigned hereby certifies that he or she has read the terms of this commitment and is authorized to bind the bidder to the commitment herein set forth. Date: (Name of Authorized Officer) Signature: Title: We, , do certify that we did undertake the following steps in good faith to procure minority enterprise. The bidder must cite that at least five steps were taken. Contacted minority businesses that reasonably could have been expected to submit a quote and that were known to the contractor or available on these State or local government-maintained lists at least ten (10) days before the bid or proposal date and notifying them of the nature and scope of the work to be performed. 2. Made the construction plans, specifications, and requirements available for review by prospective minority businesses, or providing these documents to them at least ten (10) days before the bid proposals are due. 3. Broke down or combined elements of work into. economically feasible units to facilitate minority participation. 4. Worked with minority trade, community, or contractor organizations identified by the Office of Historical Underutilized Businesses and included in the bid documents that provided assistance in recruitment of minority businesses. 5. Attended any prebid meetings scheduled by the public owner. 6. Provided assistance in getting required bonding or insurance or providing alternatives to bonding or insurance. for subcontractors. 7. Negotiated in good faith with interested minority businesses and did not reject them as unqualified without sound reasons based on their capabilities. Any rejection of a minority business based on lack of qualifications should have the reasons documented in writing. 8. Provided assistance to an otherwise qualified minority business in need of equipment, loan capital, lines of credit, or joint pay agreements to secure loans, supplies, or letters of credit, including waiving credit that is ordinarily required. Assisted minority businesses in obtaining the same unit pricing with the bidder's supplier in order to help the minority I businesses in establishing credit. 9. Negotiated joint venture and partnership arrangements with minority businesses in order to increase opportunities for minority business participation on a public construction or repair project when possible. 10. Provide quick pay agreements and policies to enable minority contractors and suppliers to meet cash flow demands. ATTACHMENT II SUBJECT: LETTER OF INTENT TO PERFORM AS A SUBCONTRACTOR OR PROVIDE MATERIALS OR SERVICES (Project Name) TO: (Name of Prime Bidder) The undersigned intends to perform work in connection with the above project as a Minority Business Enterprise. The MBE status of the undersigned is certified by the State of North Carolina. The undersigned is prepared to perform the following described work or provide materials or services in connection with the above project (specify in detail particular work items, materials or services to be performed or provided): at the following price: You have projected the following commencement date for such work, and the undersigned is projecting completion of such work as follows: Items Projected Projected Commencement Completion Date Date Subcontracting at any tier must be reported and is subject to all MBE compliance requirements. This form shall be used for MBE subcontracting at any level. Date: (Name of Minority Contractor) By: ATTACHMENT I OR III MUST BE SUBMITTED WITH BID ATTACHMENT III CERTIFICATION REGARDING SUBCONTRACTING PRACTICES We, ,hereby certify that it is (Name of Bidder) our intent to perform 100% of the work required for the contract. (Name of Project) In making this certification, the Bidder states the following: 1. That the Bidder does not customarily subcontract elements of this type project, and normally performs and has the capability to perform and will perform all elements of the work on this project with his/her own current work forces; and 2. That the Bidder agrees to submit the following information after bid and before the award of the contract: * List the scope of services involved in this project. * List previous projects of this type that Bidder has performed with his/her forces. * Payrolls from the above-mentioned jobs which illustrate Bidder's employees' job classifications needed to perform the elements of the work on the Project or a breakdown of Bidder's entire work force which illustrates the number of employees in each job classification. Name and phone number of the Field Supervisors for these jobs. List of equipment Bidder's firm owns that has been used on previous projects. Copies of lease agreement for equipment that was leased. The Bidder agrees to provide any additional information requested for the statement contained in paragraph number 1 above. The undersigned hereby certifies that he or she has read this certification and is authorized to bind the Bidder to the commitments herein contained. Date: (Name of Authorized Officer) Signature: Title: ORANGE COUNTY GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -- NORTH CONSTRUCTION MANAGER AT RISK CAROLINA Table of Contents Page Article 1. Definitions ................................................................................................................... ..................... 3 Article 2. Correlation, Interpretation and Intent of Contract Documents ..................................:. ..................... 6 Article 3. Familiarity with Work, Conditions and Laws ............................................................... ..................... 7 Article 4. Bonds .......................................................................................................................... ..................... 8 Article 5. Insurance and Indemnity ............................................................................................. ..................... 8 Article 6. Other Record Documents and Submittals .................................................................. ................... 16 Article 7. Contractor ................................................................................................................... ................... 17 Article 8. Owner .......................................................................................................................... ................... 24 Article 9. Construction Manager ................................................................................................. ................... 25 Article 10. Designer ...................................................................................................................... ...................25 Article 11. Testing and Surveying ................................................................................................ ................... 25 Article 12. Separate Contracts .....................................:............................................................... ................... 26 Article 13. Contract Time ............................................................................................................. ................... 26 Article 14. Changes in the Work ................................................................................................... ................... 29 Article 15. Change of the Contract Price ...................................................................................... ................... 31 Article 16. Unforeseen Conditions ................................................................................................ ................... 32 Article 17. Correction of Work before Final Payment ................................................................... ................... 33 Article 18. Correction of Work after Substantial Completion; Warranties and Guaranties .......... ................... 33 Article 19. CM's Right to Do Work ................................................................................................ ................... 34 Article 20. Partial Payments ......................................................................................................... ................... 35 Article 21. Final Payment ............................................................................................................. ................... 37 GENERAL CONDITIONS FOR CM AT RISK PROJECT 1 of 43 JUNE 2007 EDITION Article 22. Contractor, Subcontractor and Supplier Affidavit ........................................................................... 38 Article 23. Assignments and Subcontracts .......................................... ........................................................... 38 Article 24. Measurements .................................................................... ........................................................... 38 Article 25. Contractor and Subcontractor Relationships ...................... ........................................................... 38 Article 26. Use of Premises .................................................................. ........................................................... 39 Article 27. Cutting, Patching and Fitting ............................................... ........................................................... 39 Article 28. Dispute Resolution .............................................................. ........................................................... 39 Article 29. Taxes ................................................................................... ........................................................... 40 Article 30. Operation of Owner's Facilities ........................................... ........................................................... 40 Article 31. Third Party Beneficiary Clause ........................................... ........................................................... 41 Article 32. Measurement of Quantities ................................................. ...........................................................41 Article 33. Termination by the CM for Cause ....................................... ...........................................................41 Article 34. Termination or Suspension by the CM for Convenience .... ........................................................... 41 Article 35. Minority Business Enterprise Program ................................ ........................................................... 43 Article 36. General ................................................................................:.......................................................... 43 GENERAL CONDITIONS FOR CM AT RISK PROJECT 2 of 43 JUNE 2007 EDITION ARTICLE 1. DEFINITIONS 1.1 Agreement - The Construction Agreement, these General Conditions, and any Supplementary Conditions. 1.2 AIA -The American Institute of Architects. 1.3 ASTM -The American Society for Testing and Materials. 1.4 Beneficial Occupancy -The point at which the Project can be occupied by the Owner for its intended purpose, upon achievement of Substantial Completion, as defined in paragraph 1.39 of these General Conditions. 1.5 Change Order - A written order to the Contractor signed by the CM, the Owner and the Designer authorizing an addition, deletion, or revision in the Work and/or an adjustment in the Contract. Price and/or the Contract Time issued after execution of the Construction Agreement. See paragraph 14.1 of these General Conditions. 1.6 Completion Dates -Those dates identified as the Contractor's Completion Dates in the Contractor's Construction Schedule, the Master Schedule, or elsewhere in the Contract Documents. 1.7 Construction Agreement -The document executed by the Contractor and the CM to formally memorialize their consent to the terms of the Agreement. 1.8 Construction Change Directive - A written order to the Contractor signed by the CM, the Owner and the Designer directing an addition, deletion, or revision in the Work after execution of the Construction Agreement, in circumstances when the parties have been unable to agree on an adjustment to the Contract Price or the Contract Time, but the CM directs that the Contractor proceed with said Work subject to adjustment of the Contract Price and/or Contract Time under the procedures described herein. 1.9 Construction Manager -The person or firm designated as the Construction Manager or the CM in the Contract Documents, or its authorized representatives. The agreement between the CM and the Owner is referred to herein as the CM Contract or the Construction Management Contract. 1.10 Contractor's Construction Schedule -That schedule described in Article 13 hereof and identified as the Contractor's Construction Schedule. 1.11 Contract Documents -All of the documents that make up the Agreement, plus the Drawings and Specifications that describe the scope of the Work, plus allowable Modifications to the Contract Documents. 1.12 Contract Price -The total monies payable to the Contractor under the Contract Documents ' pursuant to paragraph 15.1 of the Agreement. 1.13 Contract Time -The number of calendar days stated in, or computed from, the Contract Documents for the completion of the Work, or any portion thereof. See, particularly, Article 13 hereof. Time of completion as specified therein is of the essence. The time used and referred to on the Project will be that time which is observed in Hillsborough, North Carolina, being Eastern Daylight Savings Time (EDT), Eastern Standard Time (EST), or other as designated by the Designer. 1.14 Contractor -The Contractor shall be that party identified as such in the Agreement. GENERAL CONDITIONS FOR CM AT RISK PROJECT 3 of 43 JUNE 2007 EDITION 1.15 Days -Unless otherwise indicated, the term "days" shall mean consecutive calendar days. 1.16 Daylight Hours -The hours or portions of hours between sunrise and sunset local time. 1.17 Designer(s) -The person or firm designated as the Designer in the Contract Documents, or their authorized representatives. The Designer, as referred to herein, shall mean architect, landscape architect, and/or engineer. They will be referred to hereinafter as if each were of the singular number, masculine gender. 1.18 Drawings -The Drawings are the graphic and pictorial portions of the Contract Documents, wherever located and whenever issued, showing the design, location, and dimensions of the Work, and generally including plans, elevations, sections, details, schedules and diagrams. A list of the Drawings is contained in the Supplemental General Conditions. 1.19 Field Order - A written order issued by the Designer which clarifies or interprets the Contract Documents or orders minor changes in the Work in accordance with the Contract Documents. See paragraph 14.3 of these General Conditions. 1.20 Final Completion -The point at which the Contractor has, as determined by the Designer, completed the Work, with the exception of guaranty and warranty obligations, and becomes entitled, upon the recommendation of the CM and the Designer and determination by the Owner, to final payment. 1.21 The words "furnish," "furnish and install," "install," and "provide" or words with similar meanings shall be interpreted, unless otherwise stated, to mean furnish and install complete, in place and ready for service. 1.22 Master Schedule -The CM shall prepare and maintain a Master Schedule for the Project. The Master Schedule shall specify the proposed start and finish dates for each major project activity including all design and construction activities. The Master Schedule shall be included in the bid documents presented to bidders. The Master Schedule shall be revised and updated to include key activities from the approved Contractor's Construction Schedule, as described in the Contract Documents, including proposed start and finish dates. 1.23 Modification - (A) a written amendment to the Contract Documents signed by the CM and the Contractor and identified therein as such, (B) a Change Order, (C) Construction Change Directive, or (D) a Field Order. A Modification may only be issued after execution of the Agreement. 1.24 Notice -The term "notice" or "written notice" as used herein shall mean and include all written notices, demands, instructions, and claims approvals and disapprovals furnished by the CM, the Owner or the Designer to obtain compliance with the requirements of the Contract Documents, as well as all written notices, demands, instructions and claims furnished by the Contractor as required by the Contract Documents. Where notice is required under the terms of the Contract Documents, written notice shall always be required, and oral or "constructive" notice shall be insufficient and ineffective as notice. Email or other electronic delivery shall be insufficient and ineffective as notice unless specifically allowed by the Supplementary Conditions or a Modification to the Agreement. Written notice shall be deemed to have been duly served on the date that it is delivered in person to the individual or to a member of the firm, to an officer of the corporation for whom it is intended, to an authorized representative of such individual, firm, or corporation, or on the date that it is mailed by registered or certified mail, return receipt requested, addressed to the last business address of such individual, firm, or corporation known to the person GENERAL CONDITIONS FOR CM AT RISK PROJECT 4 of 43 JUNE 2007 EDITION giving the notice. Written notice may also be given by facsimile transmission, provided that proof of delivery is obtained. In the case of delivery in person, such delivery shall not be effective unless and until a written and signed receipt showing the date and time of delivery is obtained. 1.25 Notice of Award -The written notice by the CM to the Contractor that the Contractor is the successful Bidder and that upon compliance with the conditions precedent to be fulfilled by the Contractor within the time specified, the CM will execute and deliver the Agreement to the Contractor. 1.26 Notice to Proceed -See paragraph 13.3 of these General Conditions. 1.27 Owner -The Owner is the person designated as such in the Agreement. 1.28 Owner's Authorized Representative - A person, or persons, employed by the Owner and designated from time to time by written notice to the Contractor to administer the Contract Documents, and to observe and monitor the Work on behalf of the Owner with authority and responsibility as herein specified. 1.29 Project - The total construction of which the Work performed under the. Contract Documents may be the whole or a part. 1.30 Project Manager -That person designated by the Contractor in accordance with paragraph 7.2 who shall be in general charge of the Work and its performance and who shall have the authority set forth in the last sentence of paragraph 7.2. 1.31 Request For Information (RFI) - A written communication from the Contractor to the CM to be forwarded to the Designer for any interpretation of, or information needed, required, or desired under the Contract Documents. The CM reserves the right to determine the reasonable format and contents required for a RFI. In any RFI, the Contractor shalt state a reasonable date by which a response is necessary in order to avoid delay in progress of the Work and shall make such request sufficiently in advance of such date as to avoid any such delay. The CM shall obtain a response in writing to the RFI by the date stated by the Contractor unless the CM cannot reasonably do so, in which case the CM shall prior to that date notify the Contractor of the date by which the CM can reasonably respond. The Contractor shall not be entitled to any additional time for the completion of the Work or any portion thereof by reason of the failure to timely respond to an RFI if the Contractor has not submitted the RFI sufficiently in advance to allow the CM and the Designer a reasonable time within which to respond. 1.32 Request for Payment -The form, in the form of AIA Document G702 (latest edition.) or other published document approved by the CM, which is to be used by the Contractor in requesting progress payments and which is to include a Schedule of Values as required by the Contract Documents and an affidavit of the Contractor that progress payments theretofore received from the CM on account of the Work have been applied by the Contractor to discharge in full all the Contractor's obligations incurred in connection with Work covered by all prior applications for payment. See paragraph 20.2 of these General Conditions. 1.33 Resident Superintendent -That person designated by the Contractor in accordance with paragraph 7.2 who has day-to-day responsibility for the prosecution of the Work and the obtaining of proper materials and equipment, and adequate labor and who shall have the authority set forth in the last sentence of paragraph 7.2. GENERAL CONDITIONS FOR CM AT RISK PROJECT 5 of 43 JUNE 2007 EDITION 1.34 Schedule of Values -Any breakdown of the Contract Price which may be required by the Contract Documents, and designated as such. See paragraph 20.1 of these General Conditions. 1.35 Specifications -That portion of the Contract Documents consisting generally of the written requirements for materials, equipment, construction systems, standards, and workmanship for the Work and performance of related services. 1.36 Subcontractor - A person, firm, or corporation who has entered into a direct contract with the Contractor to perform any of the Work at the Project. 1.37 Submittal -Shop drawings, product data, samples, and other documents required by the Contract Documents to be submitted by the Contractor to the CM and the Designer. 1.38 Submittal Register -See paragraph 13.2 of these General Conditions. 1.39 Substantial Completion -The point at which the Work, as determined by the Designer, is sufficiently complete in accordance with the Contract Documents that it can be utilized by the Owner for its intended use, and all necessary permits and permissions for beneficial occupancy and utilization having been obtained by the CM. All operations and maintenance manuals, Owner training, and as-built drawings must be submitted within thirty (30) days of substantial completion. 1.40 Sub-subcontractor - A person or entity that has a direct or indirect contract with a Subcontractor to perform any of the Work at the Project. 1.41 Work -The construction and services required by the Contract Documents, including all labor, materials, equipment, and services provided or to be provided by the Contractor to fulfill the Contractor's obligations. 1.42 All references in the Contract Documents to the masculine shall be interpreted as including the feminine or neuter and all references in the Contract Documents to the singular or the plural shall be interpreted as including the other, as may be appropriate in the reasonable interpretation of the Contract Documents. ARTICLE 2. CORRELATION, INTERPRETATION AND INTENT OF CONTRACT DOCUMENTS 2.1 It is the intent of the Specifications and Drawings and other Contract Documents to describe a complete Project in accordance with the Contract Documents. 2.2 The Contract Documents are complementary; what is called for by one is as binding as if called for by all. If the Contractor finds a conflict, error or discrepancy in the Contract Documents, the Contractor shall notify the CM in writing before proceeding with the Work affected thereby. In resolving such conflicts, errors and discrepancies, the Contract Documents shall be given preference in the following order: Construction Agreement, Modifications, Addenda, Supplemental Conditions, General Conditions, Specifications, and Drawings. Figure dimensions on Drawings shall govern over scale dimensions, and detailed Drawings shall govern over general Drawings. Any Work that may reasonably be inferred from the Contract Documents as being required to produce the intended result shall be supplied whether or not it is specifically called for. Work, materials or equipment described in words which, so applied, have a well known technical trade meaning shall be deemed to refer to such meaning and to incorporate any recognized standards which are a part of such meaning. GENERAL CONDITIONS FOR CM AT RISK PROJECT 6 of 43 JUNE 2007 EDITION 2.3 Miscellaneous items, accessories and work which are not specifically. mentioned, but which are essential to produce a complete and properly operating installation, or useable structure or plant providing the indicated function shall be furnished and installed without change in the Contract Price. Such miscellaneous items and accessories shall be of the same quality standards, including material, style, finish, strength, class, weight and other applicable characteristics, as specified for the major component of which the miscellaneous item or accessory is an essential part, and shall be approved by the Designer before installation. This requirement is not intended to include major components not covered by or inferable from the Contract Documents. 2.4 The Work of all trades under the Contract Documents shall be coordinated by the Contractor in such a manner as to obtain the best workmanship possible for the Work and all components of the Work shall be installed or erected in accordance with the best practices of the particular trade. 2.5 The Contractor shall fully complete the Work and shall be responsible for all of the Work under the Contract Documents to which the Construction Agreement applies. If the Contractor is prevented from doing so by any limitation of the Contract Documents, the Contractor shall immediately give notice thereof to the CM in writing before proceeding with the construction in the area where the problem or limitation exists. 2.6 Standard specifications or manufacturers' literature, when referenced, shall be of the latest revision or printing unless otherwise stated and is intended to establish the minimum requirements acceptable. 2.7 For those materials specified without the use of brand names, the Contractor shall submit to the CM within thirty (30) days after its receiving the Construction Agreement for signatures, any product that meets the express requirements of the Specifications, unless a longer time is agreed to in the Master Schedule. Such Submittal shall include manufacturer's data, test reports, performance data and certifications, samples, erection details, and other applicable information as required to permit determination by the Designer whether such proposed products are suitable. The Designer shall be the sole judge as to the suitability of any proposed product. The burden of proof of quality rests with the Contractor. 2.8 The Contractor is required to examine and read the complete set of Drawings and Specifications for the Project for information concerning the Work, because some of the Work for which the Contractor will be responsible may be indicated on or in documentation applying primarily to the Work of one or more other separate prime contractors. No allowance will be made for the Contractor's failure to become familiar with the complete set of Project Drawings and Specifications. 2.9 Contractor's requests for clarification or information shall clearly define the cause(s) of the Contractor's request and, as appropriate, shall include the Contractor's interpretation and the Contractor's proposed solution. ARTICLE 3. FAMILIARITY WITH WORK, CONDITIONS AND LAWS 3.1 The Contractor has investigated prior to bidding and is satisfied with all conditions affecting the Work, including but not restricted to those bearing upon transportation, disposal, handling and storage of materials, availability of labor, water, electrical power, roads and uncertainties of weather, or similar physical conditions at the Project site, and the character of equipment and facilities needed prior to and during prosecution of the Work. The Contractor is satisfied as to the character, quality and quantity of surface and subsurface GENERAL CONDITIONS FOR CM AT RISK PROJECT 7 of 43 JUNE 2007 EDITION materials or obstacles to be encountered insofar as this information is reasonably ascertainable from inspection of the Project site, including all exploratory work done by the Owner, as well as from information presented by the Contract Documents, or any other information made available to the Contractor prior to receipt of bids. Any failure by the Contractor to become acquainted with the available information shall not relieve the Contractor from the responsibility for estimating properly the difficulty or cost of successfully performing the Work. 3.2 The Contractor shall be entitled to rely upon all information furnished to the Contractor in writing by the CM with respect to the Project site and to make all inferences from it that would reasonably be made by a contractor having knowledge and experience with similar work; however, the Contractor shall not be entitled to infer from CM-supplied information any fact or condition which would not be inferred by a contractor having knowledge and experience with similar work and, if the CM-supplied information is inadequate or insufficient in any respect., the Contractor shall be required to obtain independently such other information as a knowledgeable and experienced contractor would prudently obtain in order to evaluate any such condition. 3.3 The Contractor specifically acknowledges familiarity with all Federal, State, and local laws, ordinances, rules, and regulations which may in any manner affect those engaged or employed in the Work, or the materials or equipment in or about the Work, or in any way affect the conduct of the Work and agrees that the Contractor and the Contractor's employees, Subcontractors, and suppliers will, at all times, comply with same. If the Contractor shall discover any provisions in the Contract Documents which are contrary to or inconsistent with any such law, ordinance, rule, or regulation, the Contractor shall immediately give notice thereof to the CM in writing, identifying any items of Work affected, and the Contractor shall not proceed until the Contractor has received written direction from the CM with respect to these items. If the Contractor performs contrary to or inconsistently with any such law, ordinance, rule, or regulation without giving such notice, the Contractor shall bear all costs which are a consequence of such performance. 3.4 At times selected by the CM after execution by the Contractor of the Construction Agreement, apre-construction conference shall be scheduled and conducted for the benefit of the Project. ARTICLE 4. BONDS 4.1 A performance bond in the full amount of the Contract Price, and subject to changes in the Contract Price, may be required of the Contractor to guarantee the faithful performance of the Work in compliance with the Contract Documents, in such form as may be required by law and approved by the Owner. If required, the bond shall be dated the same date as the Construction Agreement and must be accompanied by a current copy of the power of attorney for the attorney-in-fact executing such bond on behalf of a surety company licensed to do business in the state of North Carolina. 4.2 A payment bond in the full amount of the Contract Price, and subject to changes in the Contract Price, may be required of the Contractor to guarantee the payment of all labor and material costs or claims in connection with compliance with the Contract. If required, the payment bond shall be in such form as may be required by law and approved by the Owner. Said bond shall be dated and executed in the same manner as the performance bond in paragraph 4.1. 4.3 The performance and payment bonds shall run to the CM and Owner as dual obligees and shall be issued on AIA Form A312. GENERAL CONDITIONS FOR CM AT RISK PROJECT 8 of 43 JUNE 2007 EDITION ARTICLE 5. INSURANCE AND INDEMNITY 5.1 CONTRACTOR PROVIDED INSURANCE The Contractor shall, without limiting its obligations or liabilities, procure, pay for and maintain such insurance as is required by law and as is required by this Agreement to protect the Contractor, the CM, the Owner and the Designer from claims for damages for bodily injury, including death, and from claims for property damage which may arise from the Contractor's or its representatives', consultants', Subcontractors', agents', or employees' operations under this Agreement. Such insurance shall be of the kinds and have limits of liability and coverages not less than the minimum limits hereinafter specified or required by law, whichever is greater. The CM makes no representation as to the adequacy or sufficiency of such coverages. The following requirements shall in no way be construed to limit or eliminate the liability of the Contractor, which arises from performance of Work under the Agreement. The Contractor is strictly responsible for any losses, claims, and costs of any kind which exceed the Contractor's limits of liability, or which may be outside the coverage scope of the policies. The insurance specified shall be provided by an insurer approved by the CM, authorized to do such business in the State of North Carolina, and on terms approved by the CM. Insurance companies utilized shall have a minimum rating of A and Class VII as evaluated by the most current A.M. Best Rating Guide. If the insurer 'has a Best Rating less than A and Class VII, the Contractor must receive specific written approval from the CM prior to proceeding with any Work under the Agreement. All agents and brokers shall hold valid licenses from the State of North Carolina. The Contractor shall furnish to the CM a certificate or certificates of insurance in a form satisfactory to the CM contemporaneously with the executed Construction Agreement. Upon request of the CM, the Contractor shall provide the CM with certified copies of the insurance policies required by this Article, including without limitation declaration pages, conditions, exclusions and endorsements, and confirmation that each policy premium -has been paid for the required term of this Agreement. Certificates of insurance shall be signed by a person authorized by that insurer to bind coverage on its behalf. All insurance policies shall provide, as evidenced by Certificates of Insurance, that the insurance shall not be canceled, reduced, restricted, or changed in any way without at least thirty (30) days prior written notice to the CM and the Owner. With regard to expiration, cancellation, reduction, restriction, or any other change, certificates shall state: "Should any of the following described policies be canceled before expiration date or be due to expire within thirty (30) days, the insurer shall mail thirty (30) days prior written notice to named certificate holder." In the event of any such cancellation, non-renewal, reduction, restriction, or change in any insurance, the Contractor is obligated to replace such insurance within seven (7) days without a gap in coverage and file accordingly such notice with the CM and the Owner, and other interested parties. Failing immediate receipt of evidence of such replacement of insurance, the CM reserves the right to procure such insurance as the CM considers desirable and the Contractor shall pay or reimburse the cost of the premium in respect thereof. It is expressly provided, however, that any action or inaction on the part of the CM in this respect shall in no way change or reduce the Contractor's responsibilities and liabilities under this Agreement. Self-funded, policy fronting, or other non-risk transfer insurance mechanisms are not acceptable without prior written approval of the CM. Full disclosure of such a program must be made prior to commencing mobilization to the Project site. Failure to make a full disclosure constitutes a material breach of the Agreement, justifying termination for default. The Contractor shall name the CM, the Owner, the Designer and their respective consultants as additional insureds under all its insurance contracts (except workers' compensation) with respect to and including without limitation liability arising out of activities performed by or on behalf of the Contractor, products and completed operations GENERAL CONDITIONS FOR CM AT RISK PROJECT 9 of 43 JUNE 2007 EDITION of the Contractor, and automobiles owned, hired, leased, or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of protection afforded to additional insureds. For any claims related to this Project, the Contractor's insurance or self-insurance shall be primary and noncontributory with respect to the CM, Owner or Designer insurance. Any insurance or self-insurance maintained by the CM, the Owner or the Designer shall be excess and noncontributory with respect to the Contractor's insurance. All policies of insurance except as noted in paragraph 5.2 shall contain a clause waiving rights of subrogation against the CM, the Owner and the Designer, unless the CM approves otherwise in writing. Limits of coverage are not to be amended by deductible clauses of any nature without the express written consent of the CM. The Contractor shall be solely responsible for any deductible assumptions that may exist in any insurance policies required under this Agreement. In addition, the Contractor shall be responsible and shall not be reimbursed for any losses arising from any risk or exposure not insured as required herein, or not covered as a result of a normal policy exclusion or that falls within the self insured retention, if Contractor is self insured. The Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. The claim provisions in the Contractor's insurance policies must specifically state the insurance company or Contractor's third party administrator, if self insured, has both the right and duty to adjust a claim and provide defense. The policies shall not contain any provision or definition which would serve to exclude or eliminate from coverage third party claims, including exclusions of claims for bodily or other injury to shareholders, partners, officers, directors, or employees of the insured, the premises owner, real estate manager, or the insured's Subcontractor, or any family relative of such persons. If the policies contain any warranty stating that coverage is null and void (or words to that effect) if the Contractor does not comply with the most stringent regulations governing the Work, it shall be modified so that coverage shall be afforded in all cases except for the Contractor's willful or intentional noncompliance with applicable government regulations. Any failure by any person to comply with reporting or other provisions of the policy including breach of warranties, shall not affect coverage provided to the CM and the Owner and their respective representatives, officials, and employees. The insolvency or bankruptcy of the Insured or of the Insured's estate shall not relieve the insurance companies of their obligations under these policies. Any clauses to the contrary are unacceptable and must be stricken. Failure to comply with these requirements shall be a material breach of this Agreement justifying termination for default. 5.1.1 Worker's Compensation and Employers' Liability Insurance The Contractor and its Subcontractors shall procure and maintain Workers' Compensation Insurance in the amount and type required by the State of North Carolina and federal law for all employees employed under the Agreement who may come within the protection of GENERAL CONDITIONS FOR CM AT RISK PROJECT 10 of 43 JUNE 2007 EDITION Workers' Compensation Laws and covering all operations under the Agreement whether performed by the Contractor or by its Subcontractors. In jurisdictions not providing complete Workers' Compensation protection, the Contractor and its Subcontractors shall maintain employers' liability insurance in an amount, form, company, and agency satisfactory to the State of North Carolina and the CM for the benefit of all employees not protected by Workers' Compensation Laws and covering all operations under the Agreement whether performed by the Contractor or by its Subcontractors. The Contractor shall pay such assessments as will protect the Contractor and the CM from claims under the Workers' Compensation Laws, workers' or workmen's compensation disability benefits, and other similar employee benefit acts. The current Experience Modification Factor shall be indicated on the Certificate of Insurance. Coverage under this section shall be as required by federal and state Workers' Compensation and Occupational Disease Statutes, and shall have minimum limits as follows: Coverage A: Statutory, State of North Carolina Employers' Liability: Each Accident $1,000,000 Disease -Policy Limit $1,000,000 Disease -Each Employee $1,000,000 Such insurance shall include Voluntary Compensation coverage, a Waiver of Subrogation in favor of the CM as well as other endorsements that may be required by applicable jurisdictions, i.e. United States Longshoremen and Harbor Workers Act and maritime coverage (Jones Act). 5.1.2 Automobile Liability Insurance The Contractor shall procure and maintain automobile insurance against liability for bodily injury and property damage as described below, that may arise with respect to the Work being performed under the Agreement, and as will provide protection from claims which may arise out of or result from the Contractor's performance of the Work and the Contractor's other obligations under the Agreement, whether such performance of the Work is by the Contractor, by any representative or Subcontractor, by anyone, both officially and personally, directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. This policy of insurance shall carry the following minimum Limit of Liability: Combined Single Limit $1,000,000 The policy of insurance shall contain or be endorsed to include the following: a) owned, hired, and non-owned automobile liability. b) If the policy contains a warranty stating that coverage is null and void (or words to that effect) if the transporter does not comply with the most stringent regulations governing the Work, it shall be modified so that coverage shall be afforded in all cases except for the transporter's willful or intentional noncompliance with applicable government regulations. Any failure by any party to comply with reporting or other provisions of the policy including breach of warranties, shall not affect coverage provided to the CM, the Owner, and their respective representatives, officials, and employees. GENERAL CONDITIONS FOR CM AT RISK PROJECT 11 of 43 JUNE 2007 EDITION No subcontracting of waste hauling shall be permitted without prior, written approval of the CM. 5.1.3 General Liabilitv This policy must be written on an Occurrence basis, with the following. minimum Limits of Liability: General Aggregate per project $2,000,000.00 Products/Completed Operations Aggregate $2,000,000.00 Bodily Injury and Property Damage csl/each occurrence $1,000,000.00 Personal Injury and Advertising Injury $2,000,000.00 The foregoing Limits of Liability shall be doubled in the event the Construction Agreement is between the CM and a single prime Contractor. The policy of insurance shall contain or be endorsed to include the following: a) Blanket Contractual Liability covering Contractor's indemnification obligations under this Agreement, in accordance with ISO policy form CG 00 01. Modifications to the standard provision will not be acceptable if they serve to reduce coverage. b) Premises/Operations Liability. c) Explosion, collapse, and underground fault. d) Independent Contractors and Independent Subcontractors coverage. e) Broad Form Property Damage. f) Personallnjury. g) Cross Liability/Severability of Interest clause. h) Employer's Stop-Gap Liability endorsement, if applicable. i) Amendment of the Pollution Exclusion Endorsement to allow coverage for bodily injury or property damage caused by heat, smoke, or fumes from a hostile fire. j) Designated General Aggregate Limit Endorsement if required by the Supplementary Conditions. k) For contractors with design responsibility, endorsement CG22 80 and DIC for contractors' professional is requested. Coverage shall remain continuously in effect and without interruption for at least six (6) years from the date of the Notice of Award and shall include coverage for exposures arising from operations that have been completed. The Contractor shall furnish the CM and each other additional insured listed in the Agreement to whom the Certificates have been issued, evidence satisfactory to the CM of continuation of such insurance at the date of Substantial Completion and each year thereafter. 5.1.4 Pollution Leaal Liabilitv (PLL) GENERAL CONDITIONS FOR CM AT RISK PROJECT 12 of 43 JUNE 2007 EDITION Pollution Legal Liability coverage will be provided if required by the Supplementary Conditions. 5.1.5 Professional Liabilit Policies for professional liability must be provided by the Contractor or its independent design professional if the Contractor is required to provide any professional design services under the Contract Documents. Alternatively, compliance with paragraph 5.1.3 (k) is acceptab-e. The limits of coverage required for professional liability shall be included in the Contract Documents, and will be subject to approval by the CM, taking into account among any other reasonable factors the risks insured against, the cost of the insurance, and the professionals providing the insurance. 5.1.6 Claims The Contractor shall notify the CM within twenty-four (24) hours of any claims or alleged claims received by the Contractor covered by any of the policies of insurance required of Contractor in this Agreement. The Contractor shall provide a written copy of the claim or alleged claim to the CM within three (3) days of the Contractor's receipt of the claim or alleged claim. If a claim is settled to the satisfaction of the claimant, the Contractor shall submit a copy of the claimant's release to the CM. If a claim or alleged claim is rejected by the Contractor and/or its insurance company, the Contractor shall immediately report this fact to the CM. Should thirty (30) days elapse after the claim or alleged claim has been received by the Contractor, and the Contractor is not able to report a settlement or rejection of the claim, it shall report to the CM the steps being taken with respect to the claim. Without limiting the foregoing, the Contractor shall notify the CM in writing of any paid or incurred claims which may impair annual aggregate or general liability. 5.1.7 Deductibles and Self-insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the CM. At the option of the CM, either: the insurer shall reduce to a maximum of $100,000 or eliminate such deductibles or self-insured retentions with respect to the CM, or the Contractor shall provide evidence of collateral provided to insurers or procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses within the deductible or self-insured retention amount. Any self-insured retention or deductible amount on the policy shall not reduce the amount of collectible limits or liability. 5.1.8 Subcontractors The Contractor shall include all Subcontractors as Insureds under its policies, or shall furnish separate certificates, policies, and endorsements for each Subcontractor the Contractor intends to use. If a Subcontractor does not take out insurance in its own name and the Contractor wishes to provide insurance protection for such Subcontractor and such Subcontractor's employees, the Contractor shall either (a) procure appropriate policies in the name of the Subcontractor, or (b) cause a rider or riders to be attached to the Contractor's policies which shall identify the Subcontractor thereby covered; provided, however, in the case of the latter option, such a rider need not be attached to the Contractor's workers' compensation policy if such policy by its terms is sufficiently broad to cover the employees of all Subcontractors performing Work under the Contract Documents. GENERAL CONDITIONS FOR CM AT RISK PROJECT 13 of 43 JUNE 2007 EDITION Except as otherwise approved by the CM in writing, Limits of Liability and coverage scope must be at a minimum as stringent as required of the Contractor by the Contract Documents. All Work performed for the Contractor by any Subcontractor shall be pursuant to an appropriate agreement between the Contractor and the Subcontractor which shall contain provisions that waive all rights the contracting parties may have against one another for damages caused by fire or other perils covered by insurance as provided herein. Insurance monies received from any loss shall be divided as the respective interest of the parties affected shall appear. 5.2 PROPERTY INSURANCE The CM shall be responsible for purchasing and maintaining insurance to protect the Project from perils of physical loss. The insurance shall provide for the cost of replacement for the Work at the time of any loss. The insurance shall include as named insureds the Owner, the CM, the Contractors and their Subcontractors and shall insure against the loss from the perils of fire and all risk coverage for physical loss or damage due to theft, vandalism, collapse, malicious mischief, transit, flood, earthquake, testing, damages resulting from defective design, negligent workmanship or defective material. The CM shall increase the coverage limits as necessary to reflect changes in the estimated replacement cost of the Project. The CM shall provide the Contractor, if requested, with copies of all policies thus obtained for the Project. The CM shall provide the Contractor with thirty (30) days notice of cancellation, non-renewal or endorsement reducing or restricting coverage. The Contractor and the CM waive all rights against each other and against the other separate contractors, the Owner, and their respective consultants, agents and employees for damages occurring during construction and covered by builder's risk and any property insurance required for this Project excluding Owners' Property insurance. The Contractor and the CM shall each require appropriate similar waivers from the Owner, the other separate contractors, their Subcontractors, and their consultants and agents. This waiver does not apply to design liability. The Contractor is responsible for all physical damage to owned or rented machinery, tools, equipment, forms, and other items owned, rented or used by the Contractor and/or Subcontractor(s) in the performance of the Work. The insurance coverage evidencing such shall include a waiver of subrogation in favor of the CM, the Owner and the Designer and their respective consultants and agents. The Contractor shall provide valuable papers and records insurance with coverage in an amount commensurate with project scope as set forth in the Supplementary General Conditions. If the Project includes as addition to or is adjacent to an existing structure, the CM, the separate Contractors and the Subcontractors shall be named as additional insureds for the Owner's property insurance covering such structure and its contents. If the Owner occupies or uses a part or parts of the Project prior to Substantial Completion thereof, such occupancy shall not occur until the Owner obtains property insurance for the structure and until all insurance companies providing insurance for the Project consent to such occupancy by endorsement to the insurance policies. 5.3 OWNER CONTROLLED PROJECT SPECIFIC INSURANCE In the event the Owner elects to purchase project-specific insurance affording coverage to the Contractor and Subcontractors, the terms and conditions of such coverage shall be set forth in the Supplementary Conditions. GENERAL CONDITIONS FOR CM AT RISK PROJECT 14 of 43 JUNE 2007 EDITION 5.4 CONTRACTOR AS JOINT VENTURER If the Contractor is completing this Project on a joint venture basis, both joint venture partners retain all liabilities assumed by this Agreement, individually and collectively. This may include, but is not limited to, all premiums due, deductibles/self-insured retentions, coinsurance provisions, claim provisions, insurance policy conditions, and indemnification provisions hereunder. Evidence of a Blanket Joint Venture Endorsement must be obtained from the General Liability and Contractor's Pollution Legal Liability carriers of each joint venture partner substantially as follows: With respect to "your work'; and the 'products-completed operations hazard'; you are 'an insured for your liability arising out of the conduct of any partnership or joint venture of which you were a partner or member, even though this partnership or joint venture is not shown as a Named Insured in the Declarations. This coverage is excess over any available liability purchased specifically to insure the partnership or joint venture. This coverage will not inure to the benefit of any other party except you. " 5.5 INDEMNIFICATION The Contractor, to the fullest extent not expressly prohibited by law, shall defend, indemnify, and .save harmless the CM, the Owner, the Designer, and their respective officials, officers, employees, and agents from and against any and all liabilities (foreseeable or unforeseeable), penalties, fines, forfeitures, demands, claims, causes of actions, suits, judgments, and costs and expenses incidental thereto, (including, without limitation, amounts paid pursuant to investigations, defense or settlements, and reasonable attorneys' fees), which any or all of them may hereafter suffer, incur, be responsible for, or pay out as a result of but not limited to: a) bodily injury (including sickness, disease, or death) to any person including,. but not limited to, the Contractor's employees or its representatives while on the site of the Project; or b) actual or alleged damage (including loss of use) to any property (public or private, including the Project or other property on the Project site); or c) contamination of or adverse effects on the environment arising directly or indirectly out of or in connection with the performance of the Work, including but not limited to any hazardous or toxic waste, substance, or constituent of any substance subject to regulation under CERCLA, RCRA, TSCA, and other Federal and state authorities that is spilled, released, threatening to release, or disposed of or destroyed by the Contractor or its Subcontractors on or off the site of the Project or while in transport to or from the site; or d) any violation or alleged violation of laws and regulations, arising out of or in any way connected with the Work, caused in whole or in part by the Contractor, any Subcontractor or supplier or any representatives of the Contractor. The Contractor shall not be required to indemnify any person against losses resulting from a breach of contract or resulting from negligence, misconduct or violation of laws on the part of any person indemnified hereunder. The Contractor further agrees to obtain, maintain, and pay for such liability insurance coverages and endorsements as will insure the provisions of this paragraph 5.4. GENERAL CONDITIONS FOR CM AT RISK PROJECT 15 of 43 JUNE 2007 EDITION Furthermore, the Contractor agrees to be liable for and to indemnify and reimburse the CM and the Owner for all legal fees and disbursements paid or incurred to enforce the provisions of this paragraph 5.4. The indemnification obligations under this paragraph 5.4 shall not be limited in any way by the amount or type of damages, compensation or benefits payable under worker's compensation acts, disability benefit acts, other employment benefit acts, or the amount of insurance carried or recovered. The CM acknowledges that hazardous or toxic waste, material, chemicals, compounds or substances, or other environmental hazards, contamination or pollution, (referred to hereinafter as "environmental .hazards") may be present at the Project site that were not created, generated, or released at the Project site. by the Contractor or its Subcontractors, agents or employees, acting alone or in concert with others. Unless the remediation, abatement or handling of such environmental hazards is part of the scope of the Work under this Agreement, then upon the discovery of such environmental hazards, the Contractor shall immediately, and in no event more than three days after such discovery, give notice to the CM of the environmental hazards before they are disturbed. The CM, the Owner and the Designer shall thereupon promptly investigate the environmental hazards, and make such changes in the Drawings and/or Specifications as they may find necessary to abate, remediate, isolate or handle the environmental hazards. Any increase or decrease in the Contract Price or the Contract Time resulting from such changes shall be adjusted in the manner provided herein for adjustments as to extra and/or additional Work and changes. It is agreed that the Contractor shall have no liability under this Agreement for any environmental hazards existing at, on or in the Project site prior to the date that Work commences under this Agreement unless the Contractor or its Subcontractors, agents or employees, acting alone or in concert with others, by their own negligence or misconduct, release or expose the Owner or third parties to the environmental hazards. The provisions of this paragraph 5.4 shall survive the termination or cancellation or completion of this Agreement. ARTICLE 6. OTHER RECORD DOCUMENTS AND SUBMITTALS 6.1 The CM shall furnish to the Contractor the number of copies of Drawings and Specifications stated in the Supplementary Conditions. Additional copies of Drawings and Specifications may be obtained at the cost of reproduction and handling. 6.2 The Contractor shall submit to the CM for forwarding to the Designer all Submittals required by the Contract Documents. The Contractor shall submit four (4) reproducible prints of all shop drawings plus the number of copies sufficient for its requirements. The Contractor shall submit samples in quantities required by the Contract Documents. The Contractor shalt submit product data in five (5) copies, plus the number of copies sufficient for the Contractor's requirements. All shop drawings shall be reviewed by the Contractor and shall bear the Contractor's stamp of approval before being forwarded to the CM and the Designer. Submittals shall be submitted in such time as to cause no delay to the Work or any part thereof and in accordance with the Contractor's Construction Schedule and Submittal Register. The CM shall review and process the submittal with reasonable promptness, noting desired corrections, if any. The CM shall retain three (3) copies of the submittal and shall return the balance of the reviewed submittal to the Contractor for action. The Contractor shall furnish any corrected submittal to the CM for forwarding to the Designer. The CM shall retain three (3) copies of the corrected submittal for the records of the CM and the Designer, and will return the balance of the reviewed submittal to the Contractor. GENERAL CONDITIONS FOR CM AT RISK PROJECT 16 of 43 JUNE 2007 EDITION Subject to paragraph 6.3 herein, no substitutions will be accepted after the bids have been received. All substitutions prior to the receipt of bids shall be in accordance with the Contract Documents. The Contractor acknowledges that the processing of shop drawings and other submittals is directly impacted by the clarity, completeness, and accuracy of said documents and that it is the Contractor's responsibility to (i) review and coordinate each submittal with all other related or affected Work and (ii) approve each submittal before submitting same to the CM for approval. 6.3 No substitutions and no deviations from any requirement of the Contract Documents shall be deemed allowed unless the Contractor has specifically informed the CM in writing of such deviations at the time of submittal and the Designer and the Owner have given written and specific approval to the substitutions or deviations. In proposing a deviation or substitution, the Contractor warrants to the CM, notwithstanding any review, allowance or approval by the Designer or the Owner, that the deviation or substitution is at least equal to or better in quality and for the purpose intended, and that the Contractor shall not by reason of any such review, allowance or approval be relieved from any obligation or responsibility contained in the Contract Documents. 6.4 Review of submittals by the CM and the Designer shall not be construed as relieving the Contractor from responsibility for compliance with terms or designs of the Contract Documents nor from responsibility for errors of any sort in the submittal. 6.5 The Contractor shall keep one record copy marked "As-Built" of all Specifications, Drawings, Addenda, Modifications, and Submittals at the Project in good order and annotated at least monthly to show all changes made during the construction process. Such monthly annotations and their approval by the CM shall be a condition precedent to approval by the CM of each monthly Request for Payment. Said record copy shall be stored at the Project and fully protected from damage by fire or other hazard. This record copy shall be available to the CM, the Designer and the Owner for inspection at all times. The complete record copy shall be delivered to the CM for review and transmittal to the Designer for the Owner's purposes prior to the Designer's certifying Substantial Completion of the Work. 6.6 At completion of the Project and before Final Payment, the Contractor shall assemble and deliver to the CM one complete set of all as-built drawings and one complete set of all approved submittals, product data, and samples which were reviewed by the Designer. These drawings and submittals shall be on paper, or in electronic or other media if required by the Supplementary Conditions. These drawings and submittals shall be categorized and packaged as directed by the Designer. ARTICLE 7. CONTRACTOR 7.1 The Contractor shall supervise and direct the Work efficiently and with the Contractor's best skill and attention. Except as may be set forth specifically in the Contract Documents, the Contractor shall be solely responsible for the means, methods, techniques, sequences, and procedures of construction, and for safety precautions and programs in connection with the Work. The Contractor shall be responsible to see that the finished Work complies accurately with the Contract Documents. 7.2 The Contractor shall appoint a competent Project Manager with general authority to manage the Project for the Contractor. The Contractor also shall keep on the Project at all times during the Work of the Contractor a competent Resident Superintendent and necessary assistants who shall not be replaced without prior written approval by the CM GENERAL CONDITIONS FOR CM AT RISK PROJECT 17 of 43 JUNE 2007 EDITION except under extraordinary circumstances, in which event immediate written notice shall be given to the CM. If approved by the CM, taking into account the scope and complexity of the Work of the Contractor, the Project Manager and the Resident Superintendent may be the same person. At any time, the CM, in its sole and absolute discretion, may require the Contractor to replace the Project Manager or Resident Superintendent with an experienced and competent person or persons upon seven (7) days written notice from the CM to the Contractor. Such replacement shall be at the Contractor's expense and at no cost to the CM. Both the Project Manager and the Resident Superintendent shall have authority to act on behalf of the Contractor, and instructions, directions or notices given to either of them shall be as binding as if given to the Contractor. 7.3 The Contractor shall provide sufficient competent and suitably qualified personnel, equipment, and supplies to lay out the Work and perform construction as required by the Contract Documents. The Contractor will at all times maintain good discipline and order at the site, and will comply with all applicable OSHA standards. Any person employed by the Contractor, by any Subcontractor, or by any sub- subcontractor who, in the opinion of the CM, the Designer or the Owner, does not perform its Work in a proper and skillful manner or is intemperate or disorderly shall, at the written request of the CM, be removed forthwith by the Contractor, Subcontractor, or sub- subcontractor employing such person without cost to the CM, and shall not be employed again in any portion of the Work without the prior written approval of the CM. Should the Contractor fail to remove such person or persons or fail to furnish suitable and sufficient personnel for the proper prosecution of the Work within three (3) days after written order, the CM may withhold further payment by written notice until compliance with such order. 7.4 If, in the opinion of the CM, the Designer or the Owner, any Subcontractor on the Project is incompetent or otherwise unsatisfactory, such Subcontractor shall be replaced by the Contractor with no increase in the Contract Price if and when directed by the CM in writing. 7.5 The Contractor shall furnish all materials, equipment, labor, transportation, construction equipment and machinery, tools, appliances; fuel, light and heat, if applicable, and all other facilities and incidentals necessary for the execution, maintenance, initial operation, and completion of the Work, other than those specifically excluded by the Contract Documents and to be furnished by the CM or others. When use or storage of hazardous materials or equipment or methods of more than ordinary risk are necessary in accomplishing the Work, the Contractor shall give the CM reasonable advance notice. If any materials are to be furnished or installed by the CM or others under the terms of the Contract Documents, said materials shall be made available to the Contractor at the location(s) specified in the Contract Documents. All costs of handling, transportation from the specified location to the Project, storage, and installing of materials furnished by others shall be included in the Contract Price. The Contractor shall be responsible for any demurrage, damage, loss, or other deficiencies which may occur during the Contractor's handling, storage, or use of material furnished by others. The CM shall deduct from any monies due or to become due the Contractor any cost incurred by the CM in making good any such damage, loss, or deficiency. All equipment which is proposed to be used in the Work shall be of sufficient size and in such mechanical condition as to meet the requirements of the Work and produce a satisfactory quality of work. Equipment used on any portion of the Work shall be such that GENERAL CONDITIONS FOR CM AT RISK PROJECT 18 of 43 JUNE 2007 EDITION no injury to previously completed Work, adjacent property, or existing facilities shall result from its use. When the methods and equipment to be used by the Contractor accomplishing the Work are not prescribed in the Contract Documents, the Contractor shall be free to use any methods or equipment that will accomplish the Work in conformity with the requirements of the Contract Documents. When. the Contract Documents specify the use of certain methods and equipment, such methods and equipment shall be used unless others are authorized in writing by the CM. If the Contractor desires to use a method or type of equipment other than that specified in the Contract Documents, the Contractor may request authority from the CM to do so. The request shall be in writing and shall include a full description of the methods and equipment proposed and of the reasons for desiring to make the change. If approval is given, it shall be on the condition that the Contractor shall be fully responsible for producing Work in conformity with the requirements of the Contract Documents. If, after trial use of the substituted methods or equipment, the CM or the Designer determines that the Work produced does not meet the requirements of the Contract Documents, the Contractor shall discontinue the use of the substitute method or equipment and shall complete the remaining Work with the specified methods and equipment at no additional cost to the Owner. The Contractor shall remove any deficient Work and replace it with Work of specified quality, or take such other corrective action as the CM may direct. No change in the Contract Price or in Contract Time shall be made as a result of authorizing a change in methods or equipment under this paragraph. 7.6 All materials and equipment shall be new, except as otherwise provided in the Contract Documents. When special makes or grades of material which are normally packaged by the supplier or manufacturer are specified or approved, such materials shall be delivered to the Project site in their original packages or containers with seals unbroken and labels intact. Materials shall be so stored as to assure the preservation of their quantity, quality and fitness for the Work. Stored materials, even though approved before storage, may again be inspected by the CM, the Designer or the Owner prior to their use in the Work and shall be required to meet the requirements of the Contract Documents at the time they are incorporated into the Work. Stored materials shall be located so as to facilitate their prompt inspection. The Contractor shall coordinate the storage of all materials with the CM. Materials to be stored at the Project or on the Owner's property shall not create an obstruction to the Owner's or other contractor's reasonable activities. Private property shall not be used for storage purposes without written approvals consistent with the provisions of paragraph 20.3 of these General Conditions. The Contractor shall make all arrangements and bear all expenses for the storage of materials on private property. Upon request, the Contractor shall furnish the CM a copy of the property owner's permission. All storage sites on private or the Owner's property shall be restored to their original condition by the Contractor at its entire expense, except as otherwise agreed to (in writing) by the owner or lessee of the property. 7.7 All materials and equipment shall be applied, installed, connected, erected, used, cleaned and conditioned in accordance with the instructions of the applicable manufacturer, fabricator, or processor, except as otherwise provided in the Contract Documents. 7.8 The Contractor will be fully responsible for all acts and omissions of its Subcontractors and of persons directly or indirectly employed by them and of persons for whose acts any of them may be liable to the same extent that the Contractor is responsible for the acts and omissions of the Contractor's own employees. Nothing in the Contract Documents shall GENERAL CONDITIONS FOR CM AT RISK PROJECT 19 of 43 JUNE 2007 EDITION create any contractual relationship between any Subcontractor or supplier and the CM, the Owner or the Designer, or any obligation on the part of the CM, the Owner or the Designer to pay or see to the payment of any money due any such Subcontractor or material furnisher except as may otherwise be required by law. The CM may furnish to any Subcontractor or supplier, to the extent practicable, evidence of amounts paid to the Contractor on account of specific Work done. 7.9 The divisions and sections of the Specifications and the identifications of any Drawings shall not control the Contractor in dividing the Work among Subcontractors. 7.10 The Contractor agrees to bind specifically every Subcontractor to the terms and conditions of the Contract Documents for the benefit of the CM and to furnish written evidence thereof to the CM within seven (7) days after written request by the CM. 7.11 The Contractor shall attend job progress conferences and all other meetings or conferences as directed by the CM. The Contractor shall be represented at these job progress conferences by a representative having the authority of the Project Manager and by such other representatives as the CM may direct. Job progress conferences shall be open to Subcontractors, suppliers and any others who may contribute beneficially toward maintaining required job progress, and such personnel shall be encouraged by the Contractor to attend. It shall be the principal purpose of job progress conferences to effect coordination, cooperation and assistance in every practical way toward the end of maintaining progress of the Project on schedule and to complete the Work and the Project by the specified Completion Dates. The Contractor shall be prepared to assess progress of the Work as required in the Contract Documents and to recommend remedial measures for correction of progress as may be appropriate. The CM shall preside as chairman and arrange for minutes to be taken and circulated. In the event that the prosecution of the Work is discontinued for any reason, the Contractor shall notify the CM at least forty-eight (48) hours in advance of resuming operations. Should the terms of the Contract Documents require completion of one or more portions of the Work for the Beneficial Occupancy of the Owner prior to completion of the entire Work, the Contractor shall complete such portion(s) of the Work on or before the date specified. Such completion shall include the obtaining of all government or other permits, permission, and/or approvals necessary to occupancy. The Contractor shall independently estimate the difficulties involved in arranging the Work to permit such Beneficial Occupancy and shall not claim any additional compensation or time extension by reason of any delay or increased cost due to completing such portion(s) of the Work. The Owner's possession and use of such portion(s) of the Work shall not be deemed an acceptance of any Work not completed in accordance with the Contract Documents. The Owner shall be responsible for the security, maintenance, utilities, and insurance of all portions of the Work completed and beneficially occupied by the Owner. 7.12 The Contractor shall pay all license fees and royalties, and assume all costs incident to the use of any invention, design process, or device which is the subject of patent rights or copyrights held by others, except for inventions, design processes, or devices specified by the Designer in the Contract Documents. The Contractor shall indemnify and hold harmless the CM, the Owner, the Designer, and anyone directly employed by any of them, from and against all claims, damages, losses and expenses, including attorney's fees and costs of defense, arising out of any infringement or alleged infringement of such rights during or after completion of the Work, and shall defend all such claims in connection with any actual or alleged infringement of such rights. GENERAL CONDITIONS FOR CM AT RISK PROJECT 20 of 43 JUNE 2007 EDITION 7.13 The Contractor shall secure and pay for all permits, including without limitation construction permits and licenses, and will pay all governmental charges and inspection fees necessary for the prosecution of the Work. 7.14 The Contractor shall give all notices and comply with all laws, ordinances, rules, and regulations applicable to the Work and shall protect and indemnify the CM, the Owner, the Designer, and their respective officials, officers, agents, employees or servants against any claim. or liability arising from or based on the violation of any such law, ordinance, regulation, order, or decree, whether by the Contractor or by the Contractor's employees, Subcontractors, sub-subcontractors, or their employees. 7.15 The Contractor shalt be responsible for the reasonable and necessary protection and security of its Work and its property and the property of others at the site, as required by laws or ordinances governing such conditions, or by custom or sound construction practices, and shall share such responsibilities for protection of property at the site as may be directed by the Contract Documents and the CM. The Contractor shall be responsible for any damage to the Owner's property, or that of others, by the Contractor or the Contractor's employees, Subcontractors, sub-subcontractors, or their employees or agents, and shall make good such damages. The Contractor shall be responsible for and pay for any such claims made against the CM or the Owner. 7.16 The Contractor shall comply with the Project Safety Program and Public Hazard Control Plan approved by the CM. The Contractor shall protect existing improvements designated to remain in the vicinity of .the operations and barricade all walks, roads, and areas as necessary to keep the public away from the construction. 7.17 The Contractor shall provide cover and/or protect all portions of the Work and provide all materials necessary to protect the Work whether performed by the Contractor or any of the Subcontractors or sub-subcontractors. Any Work damaged through the lack of proper protection, or from any other cause, shall be repaired or replaced without extra cost to the CM or extension to the Contract Time. The Contractor shall maintain the Work during construction and until the Work is accepted. This maintenance shall constitute continuous and effective effort prosecuted day by day, with adequate equipment and forces so that the Work is maintained in satisfactory condition at all times. All costs of maintenance shall be included in the Contract Price and the Contractor will not be paid an additional amount for such effort. Should the CM observe that the Contractor at any time has failed to maintain the Work as provided herein, the CM may immediately notify the Contractor of such non-compliance. Such notification shall specify a reasonable time within which the Contractor shall be required to remedy such unsatisfactory maintenance condition. Should the Contractor fail to properly respond to the CM's notification, the CM may, at the Contractor's expense, take such action as it may deem appropriate to remedy the defective maintenance, including suspension of the Contractor's Work or any part thereof. Any such expense incurred by the CM shall be deducted from monies due or to become due the Contractor. Parking lots, streets, and walks connecting to the Project area shall at all times be protected by the Contractor from deposits of mud, sand, stone, litter, or debris in any form. Pedestrian traffic areas around the construction limits must be maintained in a clean and safe condition at all times with required barricades and covered walkways. When excavation or other operations outside the Project limits is required, the Contractor shall, immediately following that work, return the area to its original condition. GENERAL CONDITIONS FOR CM AT RISK PROJECT 21 of 43 JUNE 2007 EDITION All catch basins and storm drain lines in the vicinity of the Project site shall be protected at all times from entry of dirt, rubble and other debris. The residue from the cleaning of trucks, wheelbarrows, concrete buggies, etc. must be prevented from entering the drainage system, and if cleaning is done, the residue must be contained and removed from the Project site with other refuse. 7.18 No burning of refuse or debris shall be allowed inside or around the Project during the course of construction. 7.19 The Contractor shall provide for and maintain necessary safety measures and safety programs for the protection of its employees and other persons at the Project site, and shall comply at all times with the requirements of the most current edition of the CAGC Safety and Health Manual [or the AGC Accident Prevention Manual in Construction], or the equivalent requirements of the Contractor's safety program, and shall fully comply with all Federal, State, and local laws, rules, regulations, and building code requirements so as to prevent accidents or injuries to persons on or about the Project site. The Contractor shall clearly mark or post signs warning of existing hazards, and shall barricade excavations, elevator shafts, stairways, floor and wall openings and similar hazards. The Contractor shall protect against damage or injury resulting from falling materials, and shall maintain all protective devices and signs throughout the progress of the Work. All trenches, excavations, or other hazards in the vicinity of the Work shall be well barricaded, and properly lighted at night. When Work requires closing of an area normally used by the Owner or the public, the Contractor shall furnish, erect, and maintain temporary barricades, and properly light the area. The Contractor shall comply with any directions and public authorities in this respect. 7.20 The Contractor shall adhere to the rules, regulations, and interpretations of the North Carolina Department of Labor's Occupational Safety and Health Standards for the Construction Industry (29 CFR Part 1926 as adopted in 13 NCAC 07F.0201, including 29 CFR Part 1910 General Industry Safety and Health Standards applicable to construction) and N.C. Gen. Stat. §95-126 through 155 (Occupational Safety and Health) as well as all revisions and amendments to such standards or statutes as may occur throughout the performance of the Work. 7.21 Any land-disturbing activity performed by the Contractor in connection with the Project shall comply with all erosion control measures set forth in the Contract Documents and any additional measures which may be required in order to ensure that the Project is in full compliance with the Sedimentation Pollution Control Act of 1973, as implemented by Title 15 North Carolina Administrative Code, Chapter 4, Sedimentation Control, Subchapters 4A, 4B and 4C, as amended (15 NCAC 4A, 4B, and 4C), and as may be revised or amended in the future. Upon receipt of notice that aland-disturbing activity is in violation of said Act, the Contractor shall be responsible for ensuring that all steps or actions necessary to bring the Project in compliance with said Act are promptly taken. The Contractor shall be responsible for all penalties assessed pursuant to N.C. Gen. Stat. 113A-64 with respect to its Work, and shall indemnify and hold harmless the CM and the Owner from all costs and expenses, including attorney's fees and costs of defense, arising out of or related to the enforcement of the Act against any party or person described in this Article. 7.22 The Contractor shall designate a responsible officer or employee as safety inspector, whose duties shall include accident prevention on the Project as well as implementation of the Contractor's safety measures and safety programs on the Project. The name of the safety inspector shall be made known to the CM at the pre-construction conference. GENERAL CONDITIONS FOR CM AT RISK PROJECT 22 of 43 JUNE 2007 EDITION 7.23 In emergencies affecting the safety of persons, the Work, or property at the Project site or adjacent thereto, the Contractor is obligated to act in the Contractor's discretion to prevent threatened damage, injury, or loss. As soon as practicable, the Contractor shall notify the CM of such emergency. The Contractor shall give the CM prompt written notice of any significant changes in the Work or deviations from the Contract Documents caused by such emergency. If the Contractor believes that additional work done in an emergency entitles the Contractor to an increase in the Contract Price or an extension of the Contract Time, the Contractor may make a claim therefore as provided in Articles 14 and/or 15 of these General Conditions. 7.24 The Contractor shall at all times keep the premises free from accumulation of waste materials or rubbish caused by the Work. At least weekly and at the completion of the Work, the Contractor shall remove all waste materials and rubbish attributable to the .Contractor's Work from and about the Project. At the completion of the Work, the Contractor shall remove all tools, construction equipment, machinery, and surplus materials. The Contractor shall leave the Work in condition for occupancy by the Owner such that. no cleaning or other operations are required. Material cleared from the Project and deposited on adjacent property shall not be considered as having been disposed of satisfactorily. If the Contractor fails to keep the Project clean and free of waste materials or rubbish, fails to satisfactorily clean-up weekly or at the completion of the Work, the CM may do so and the costs thereof may be deducted from any amounts due or to become due the Contractor. 7.25 Utilities, temporary facilities, and signs shall be provided as described in the Contract Documents. Absent a contrary direction in the Supplementary Conditions, the Contractor shall pay alt bills for its consumption of water, electricity, or other public utility service to the Project site. 7.26 The Contractor shall indemnify and hold the CM, the Owner, the Designer, the Designer's consultants, and their respective officers, agents, and employees harmless against all costs, damages, and expenses, including attorney's fees and costs of defense, arising out of claims by any separate contractor or by any Subcontractor, sub-subcontractor, or supplier engaged by or employed by the Contractor or employed by any of the Subcontractors claiming through him, including without limitation damages, losses, and expenses arising out of or relating to any inconvenience, delay, interference, or other action or non-action of the Contractor or the Contractor's Subcontractors on the Project. The Contractor acknowledges that should the Contractor or any of the Contractor's Subcontractors be damaged by any breach of contract by any other separate contractor on the Project, the Contractor may invoke applicable dispute resolution procedures with said other separate contractor. 7.27 Prior to completion of the Work and Final Payment of the Contract Price, excepting only those portions of the Work deemed accepted in accordance with the Contract Documents, the Contractor shall have charge and care of the Work, and shall take every precaution against injury or damage to any party due to the action of the elements or from any other cause, whether arising from the execution or from the non-execution of the Work. The Contractor shall, as required by the CM, replace, rebuild, repair, restore, and make good all injury or damage to any portion of the Work occasioned by any of the above causes before Final Completion and shall bear the expenses thereof. 7.28 In the event that the Work, or any portion thereof, is suspended at any time pursuant to an order of the Owner, the Contractor shall obey all instructions of the CM regarding storage of materials, drainage, protection of the Work, and erection of temporary structures during the suspension period. GENERAL CONDITIONS FOR CM AT RISK PROJECT 23 of 43 JUNE 2007 EDITION 7.29 The CM shall be responsible for the coordination of the Work of the separate contractors, both as to space and time: The CM shall incorporate the Contractor's Construction Schedule into the Master Schedule and coordinate the implementation of the Contractor's Construction Schedule. The CM shall also coordinate close-out of the Project, including but not limited to all testing, inspection, certifications, and approvals required by public agencies. The Contractor shall notify the CM promptly of any event or condition which could affect the conduct or progress of the Work and shall cooperate fully with the CM and all other separate contractors on the Project site. 7.30 The Owner has delegated to the CM all of its duties to coordinate and to expedite the Work not expressly reserved to the Owner by other provisions of the Contract Documents. 7.31 All Work performed pursuant to the Contract Documents shall conform in all respects to the North Carolina State Building Code and all other state, local, and national codes in effect at the time of and applicable to this Work, including all requirements of the North Carolina Department of Insurance. 7.32 The CM shall coordinate and supervise the installation of all sleeves, inserts, chases or other components of the Work needed for mechanical, plumbing, electrical or other work by the various contractors. The responsibility for exact location of such items shall be that of the mechanical, plumbing, electrical or other prime contractor that requires the item for passage or support of its work. Generally, the mechanical, plumbing, electrical or other contractor that requires such items for support or passage of its work shall set its sleeves, inserts, chases or other devices. If necessary to maintain the progress of and complete its Work, however, the Contractor may be required to build or set sleeves, inserts, chases or other components of the Work needed for mechanical, plumbing, electrical or other work by other contractors. 7.33 The Contractor shall be responsible for permanently fixed service facilities and systems in use during progress of the Work and shall strictly adhere to the following procedures: a) Prior to acceptance of the Work by the Owner, the Contractor shall remove and replace any part of the permanent building systems damaged through use during construction. b) Temporary filters shall be installed in each of the heating and air conditioning units, return air grilles, and other locations to prevent intrusion of dust, dirt, and debris during construction. Temporary filters shall be removed and replaced with new filters immediately prior to Substantial Completion. c) Extra effort shall be maintained to keep the building clean and under no circumstances shall air systems be operated if finishing operations are creating dust in excess of what would be considered normal if the building were occupied. d) When the permanent lighting system is used during construction, lamps shall be replaced and shall be new on the date of Substantial Completion. ARTICLE 8. OWNER 8.1 The Owner shall issue communications and notices to the Contractor through the CM to the extent contemplated by the Contract Documents. GENERAL CONDITIONS FOR CM AT RISK PROJECT 24 of 43 JUNE 2007 EDITION 8.2 In case of termination of the employment of the Designer, the Owner shall appoint as Designer a qualified person who shall have and assume all rights and duties held by the original Designer. 8.3 The Owner shall have the right to take possession of and use any portion of the Work notwithstanding the fact that the time for completion of such portion of the Work may not have expired, but such taking possession and use shall not be deemed an acceptance of any Work not completed in accordance with the Contract Documents. 8.4 A waiver on the part of the Owner of any breach of any part of the Agreement by the Contractor shall not be held to be a waiver of any other or subsequent breach. 8.5 The Owner shall pay all permanent acreage fees, governmental impact fees, and meter deposits for permanent utilities. ARTICLE 9. CONSTRUCTION MANAGER 9.1 The Owner has engaged the CM for the purpose of (i) assisting the Owner and Designer in developing and administering budgets and cost controls, (ii) in evaluating constructability and value engineering proposals, (iii) in establishing and maintaining a critical path method (CPM) schedule, (iv) in coordinating and/or expediting all Work on the Project, (v) in coordinating all Work on the Project with other projects being constructed by the Owner or others adjacent to or near the Work, and (vi) for such other purposes as the Owner may deem appropriate. ARTICLE 10. DESIGNER 10.1 The Designer is charged with responsibility for preparation and interpretation of the Contract Documents. The Designer's decisions relating to aesthetic matters shall be final. 10.2 All Work completed under the Contract Documents shall be subject to review by the Designer. No Work is to be covered without the Designer's review or prior authorization. Any Work so covered without the Designer's review or prior authorization shall be uncovered at the Contractor's expense. The Contractor shall notify the CM in writing at least twenty-four (24) hours in advance of covering any Work. 10.3 The Designer shall not be responsible for the construction means, methods, techniques, sequences, procedures, or the safety precautions and programs incident thereto, and shall not be responsible for the Contractor's failure to perform the Work in accordance with the Contract Documents, but shall be entitled to enforce any requirements in the Contract Documents specifying particular means, methods, techniques, sequences, or procedures. 10.4 The Designer shall be an Owner's agent during the construction period. The duties, responsibilities and authority of the Designer as the Owner's representative during construction are as set forth in the Contract Documents. ARTICLE 11. TESTING AND SURVEYING 11.1 Laboratory and field tests to determine compliance of construction with the Contract Documents shall be made by the Owner or testing consultants employed by the Owner except those required elsewhere in the Contract Documents to be paid for by the Contractor. The costs and expenses of providing samples for and assistance in any testing shall be borne by the Contractor and are included in the Contract Price. Any Work in which untested materials are used without approval or written permission of the CM and the Designer shall be removed and replaced at the Contractor's expense. Work found to be GENERAL CONDITIONS FOR CM AT RISK PROJECT 25 of 43 JUNE 2007 EDITION unacceptable or unauthorized will not be paid for and, if directed by the CM, shall be removed and replaced at the Contractor's expense. Unless otherwise designated, tests in accordance with the cited standard methods of ASTM or other generally recognized or specifically authorized methods which are current on the date of advertisement for bids shall be made at the expense of the Owner; provided, however, in the event that after such testing any Work is found to be defective or does not meet the requirements of the Contract Documents, the costs of retesting such Work and the costs of inspection services shall be paid by the Contractor. Samples shall be taken by a testing laboratory employed by the Owner. All materials being used are subject to inspection, tests, or rejection at any time prior to or during incorporation into the Work. Copies of all Owner test reports will be furnished to the Contractor at its written request. Copies of Contractor test reports shall be furnished to the CM upon written request. 11.2 The CM shall have the right to deduct the costs of additional testing as described in paragraph 11.1 from any money due or to become due the Contractor; or if no money is due the Contractor, the CM shall have the right to recover these costs from the Contractor, from its sureties, or from both. 11.3 All layouts and surveying shall be accomplished by properly qualified personnel duly licensed in the State of North Carolina. ARTICLE 12. SEPARATE CONTRACTS 12.1 It is expressly understood that the CM and the Owner may deploy their own employees or engage other separate contractors to perform Work as a part of the Project whose work will be performed simultaneously and sequentially with the performance of the Work by the Contractor. It shall be necessary for the Contractor to coordinate construction activities with such other contractors, particularly with respect to access to work areas, storage of materials, and use of elevators and other common facilities. The Contractor shall diligently and in good faith cooperate with the CM, the Owner, the Designer, and all other contractors with respect to such matters and shall regularly and faithfully attend any and all meetings called by the CM with respect to such matters. Any disputes between the Contractor and any other separate prime contractor with respect to such matters shall be resolved in accordance with the claim and dispute resolution procedures in the Agreement. ARTICLE 13. CONTRACT TIME 13.1 Within fourteen (14) days after initial receipt of the Construction Agreement by the Contractor for signatures, the Contractor shall prepare and submit to the CM for review and approval a preliminary Contractor's Construction Schedule for the Work pursuant to the requirements stated in the Contract Documents. 13.2 Within fourteen (14) days after initial receipt of the Construction Agreement by the Contractor for signatures, the Contractor shall submit to the CM a Submittal Register listing all Submittals the Contractor is required to make or proposes to make under the Contract Documents, the dates on which the Contractor proposes to make such Submittals and the dates by which the Contractor reasonably requires a response from the CM and the Designer with respect to each Submittal. The dates submitted shall be incorporated into the Contractor's Construction Schedule as Completion Dates when they have been approved or modified by the Owner. The CM and the Designer shall not be required to review any Submittal from the Contractor until a Submittal Register acceptable to and approved by the CM has been submitted by the Contractor. 13.3 Not later than thirty (30) days following execution and delivery of the Construction Agreement by the CM to the Contractor, the CM shall deliver to the Contractor a Notice to GENERAL CONDITIONS FOR CM AT RISK PROJECT 26 of 43 JUNE 2007 EDITION Proceed. The Notice to Proceed shall state a commencement date on which it is expected that the Contractor will begin the Work to be performed under the Agreement. The Contract Time shall be measured from said specified commencement date. The commencement date stated in the Notice to Proceed shall not be earlier than three (3) days after the Notice to Proceed is served on the Contractor. If, other than by mutual agreement, said specified commencement date is more than thirty (30) days after the date of execution and delivery of the Agreement from the CM to the Contractor and the Contractor believes said delay justifies an increase in Contract Price and/or an extension of Contract Time, the Contractor may make a claim therefore as provided in Article 14 and/or Article 15 of these General Conditions. No Work shall be done prior to the date specified in the Notice to Proceed The Contractor shall submit a final Contractor's Construction Schedule for approval by the CM no later than fourteen (14) days after issuance of the Notice to Proceed. No payments shall be due the Contractor until this schedule is approved by the CM. 13.4 The Master Schedule is a Contract Document. The Contractor represents that the Master Schedule has been reviewed in detail and taken into account in preparing its bid. The Contractor's Construction Schedule shall be incorporated into the CM's Project Master Schedule. The Contractor's Construction Schedule shall include all of its activities which impact, limit, or otherwise affect the time of completion of the Project as shown in the Master Schedule, and all of the activities of others which impact, limit, or otherwise affect the start, duration, or completion of the Contractor's activities. The Contractor further represents that the Contractor can and will complete each activity within the time shown for that activity. on the Contractor's Construction Schedule. Time is of the essence with respect to each such activity and Completion Date. 13.5 If the Contractor submits a construction schedule, progress report, or any other document that indicates or otherwise expresses an intention to achieve completion of the Work prior to any Completion Date required by the Contract Documents or prior to expiration of the Contract Time, no liability of the CM to the Contractor for any failure of the Contractor to so complete the Work shall be created or implied. 13.6 If the Contractor, for reasons beyond the Contractor's control, is delayed in beginning any activity, the Contractor shall, nevertheless, have the same number of days as is shown in the Master Schedule for the activity, and the affected activity and any succeeding activity that is dependent upon that activity shall be adjusted accordingly; provided that at any time the CM, by means of a Change Order, may require the Contractor to work overtime, to increase labor forces or to take any necessary or appropriate action to decrease the time required for any activity, and the Contractor shall be entitled to an adjustment in the Contract Price computed in accordance with Article 15 of these General Conditions. 13.7 At any time, the CM may order the Contractor, on seven (7) days written notice, to begin any activity earlier than the starting date shown on the Master Schedule. 13.8 Should the Contractor fail to start any activity on the start date shown in the Master Schedule or as it may have been adjusted in accordance with paragraphs 13.6 or 13.7 above, or become delayed, the Contractor shall, without being entitled to any increase in the Contract Price or other compensation, work overtime, increase labor forces or take such other action as may be necessary or appropriate to complete the activity by the Completion Date shown on the Master Schedule, or as such Completion Date may have been adjusted. GENERAL CONDITIONS FOR CM AT RISK PROJECT 27 of 43 JUNE 2007 EDITION 13.9 The CM shall monitor progress of the Work at all times and the Contractor shall cooperate with such monitoring and provide any and all information with respect to the progress of the Work and scheduling as the CM may reasonably require. 13.10 On a monthly basis, in consultation with the Contractor, the CM shall revise the Master Schedule, showing any adjustments made in accordance with paragraphs 13.6 or 13.7, above, by any Change Order, the progress of the Work, and any days gained or days lost with respect to any activity, and shall furnish copies thereof to the Contractor. 13.11 Should any monthly revision of the Master Schedule show that the Contractor is behind on any activity, the late completion of which could delay Substantial Completion of the Work, the CM shall be entitled to withhold from the next Progress Payment due the Contractor an amount sufficient to reimburse the CM for any and all delay damages, should Substantial Completion be delayed by the same number of days that the Contractor is currently behind schedule. If, subsequently, the Contractor's progress, as shown by any succeeding monthly revision to the Master Schedule, is such that the anticipated delay no longer exists, the CM shall pay with the Progress Payment next due to the Contractor such amounts as have been withheld in accordance with this paragraph. 13.12 The CM shall have the right to perform Work, hire and employ labor and craftsmen, rent equipment, subcontract with other parties, or do anything that the CM deems necessary or appropriate to remedy or cure any delay by the Contractor in the progress of the Work. Such action by the CM shall not, in any way, affect, void or limit any warranty, guaranty or other responsibility of the Contractor under the Contract Documents. Such action may be taken by the CM only after three (3) days written notice to the Contractor. All costs incurred by the CM in taking any such action shall be charged to the Contractor and deducted from any amounts remaining due under the Agreement. 13.13 The Contractor may be entitled to an extension of the Contract Time (but no increase in the Contract Price) for delays arising from unforeseen causes beyond the control and without the fault or negligence of the Owner, the Designer, the CM, the Contractor or the Contractor's Subcontractors as follows: a) Labor disputes and strikes that directly impact the critical path activities of the Master Schedule. b) Acts of God, tornado, fire, hurricane, blizzard, earthquake, typhoon, or flood that damage completed Work or stored materials or make it hazardous, dangerous or impracticable to perform the Work in the sole opinion of the CM. c) Acts of the public enemy; acts of the State, Federal, or local government in their sovereign capacities. d) Abnormal inclement weather as defined in Article 13.14. 13.14 On any day that the Contractor considers that the Project is delayed by adverse weather conditions, the Contractor shall identify in writing to the CM the adverse weather conditions affecting each activity, the specific nature of the activity affected, the number of hours lost, and the number of and identity (by responsibility or trade) of workers affected and shall obtain from the CM written recognition of the delay. The time for performance of this Contract includes an allowance for a number of calendar days which may not be suitable for construction Work by reason of adverse weather. The Contract Time will be extended only if the number of calendar days of adverse weather recognized by the CM exceeds the number of inclement weather days set forth below, and the Contractor demonstrates how this adverse weather impacts activities on the critical path of the Master Schedule. GENERAL CONDITIONS FOR CM AT RISK PROJECT 28 of 43 JUNE 2007 EDITION Month Number of Inclement Weather Days January 7 February g March 7 April g May 7 June 6 July g August g September 5 October 5 November 5 December g 13.15 If the Contractor believes that the progress of the Work has been adversely affected by adverse weather recognized by the CM during a particular month, the Contractor shall submit a written request for extension of time to the CM. Such a request for time extension of the Contract Time shall be submitted by the tenth (10th) day of the month following that month in which the adverse weather is encountered. The request shall include, but is not limited to, the following information: a) Detailed description of weather's effect on scheduled activities and its net effect on the critical path of the Project, and b) Weather records from the official weather station nearest the Project site and records of actual observation as contained in daily reports, correspondence, or other documentation. 13.16 The Contractor specifically recognizes that a delay by the Contractor in achieving any Completion Date can have the effect of delaying the Substantial Completion of the Project, or could force the CM to accelerate the Contractor's Work or the work of other contractors. Such delay in achieving a Completion Date will necessarily cause damages, losses, and expenses to the CM, including, but not limited to and by way of illustration only, liquidated damages payable to the Owner, damages payable to other contractors, increased and extended Project overhead, increased fees, increased costs of construction, increased and extended operation costs of other facilities, and inefficiency and loss of productivity. Such damages, .losses, and expenses may be recovered from the Contractor and, if the Contractor is bonded, its surety. 13. 17 The sum for liquidated damages payable to the Owner is the amount stipulated in the Construction Management Contract and reasonably estimated in advance to cover the losses to be incurred by the Owner by reason of failure of said CM and the Contractor(s) to complete the Project within the time specified in the Construction Management Contract, such time being in the essence of this Agreement and a material consideration thereof. ARTICLE 14. CHANGES IN THE WORK 14.1 Without invalidating the Contract Documents, the CM may, at any time, or from time to time order additions, deletions, or revisions in the Work. Said additions, deletions, or revisions shall be authorized only by written Change Orders, Construction Change Directives or Field Orders. Upon receipt of a Change Order, Construction Change Directive or Field Order, the Contractor shall proceed with the Work involved. All such Work shall be executed under the applicable conditions of the Contract Documents. If any change causes an increase or decrease in the Contract Price and/or an extension or shortening of the Contract Time, GENERAL CONDITIONS FOR CM AT RISK PROJECT 29 of 43 JUNE 2007 EDITION adjustments shall be made as provided in Article 14 and/or Article 15 of these General Conditions. 14.2 If possible, Work shall not begin on any change. or alteration to the Work until a written Change Order is executed settling any change in the Contract Price or Contract Time. In the event the Contractor and the CM cannot agree that an adjustment to the Contract Price or the Contract Time is warranted, or cannot agree on the appropriate adjustment to the Contract Price or the Contract Time, in order to expedite the Work and avoid or minimize delay in the Work that might affect the Contract Price or Contract Time, the Contractor shall, if so directed by the CM in writing, nevertheless proceed with the Work, and any adjustment to the Contract Price or Contract Time shall be negotiated by the parties at a later date, utilizing the dispute resolution procedures under this Agreement if necessary. Any claim for an adjustment in Contract Price or Contract Time, if not defined in the Construction Change Directive, shall be promptly made in writing in accordance with the procedures defined in Article 15.2 of these General Conditions. 14.3 The Designer, through the CM, may authorize minor changes or alterations in the Work not involving change in the Contract Price or in the Contract Time and not inconsistent with the overall intent of the Contract Documents. These may be accomplished by a Field Order. Such alterations shall not invalidate the Contract Documents nor release the surety. If the Contractor believes that any minor change or alteration authorized by the Designer entitles the Contractor to an increase in the Contract Price and/or an extension of Contract Time, the Contractor may make a claim therefore as provided in Article 14 and/or Article 15 of these General Conditions. 14.4 Except in an emergency endangering life or property, no change shall be made by the Contractor except upon prior written Change Order, Construction Change Directive or Field Order authorizing such change. 14.5 Increases in the Contract Price and/or extensions of the Contract Time for additional Work performed by the Contractor shall only be in accordance with a written Change Order or Construction Change Directive signed by the CM. The Contractor shall not be entitled to additional time or to additional compensation for any Work performed or material supplied which is claimed to have been authorized or settled by an "oral" change, or by a "constructive" or "implied" change, or by a course of conduct, or by any action or non-action by the CM, or any other persons, or by any means whatsoever other than by a written Change Order or Construction Change Directive for such Work or material signed by the CM. 14.6 Changes in the Work resulting from emergency shall not invalidate the Contract Documents nor release the surety if the Contractor is bonded. 14.7 The CM shall not be responsible for verbal instructions which have not been confirmed in writing, and in no case shall such instructions be interpreted as permitting a departure from the Contract Documents unless such instruction is confirmed in writing and supported by a proper Change Order, Construction Change Directive or Field Order, whether or not the cost is affected. 14.8 If the Contractor is bonded, the CM, in its sole discretion, may require that the Contractor notify the Contractor's sureties of any changes affecting the general scope of the Work or change in the Contract Price, and that the amount of applicable bonds shall be adjusted accordingly. If this requirement is exercised, the Contractor shall furnish proof of such adjustment to the CM. GENERAL CONDITIONS FOR CM AT RISK PROJECT 30 of 43 JUNE 2007 EDITION If this requirement is exercised, the Change Orders and Construction Change Directives shall require written consent of the Contractor's surety. At the time of signing a Change Order, the Contractor shall be required to certify as follows: "I certify that all sureties have been notified that my contract has been altered by the amount of this Change Order or Construction Change Directive and that a copy of the approved Change Order or Construction Change Directive will be mailed to all sureties upon its receipt by me." If this requirement is exercised, no payment to the Contractor on account of any Change Order or Construction Change Directive shall become due or payable until written evidence of the surety's consent to the Change Order or Construction Change Directive has been furnished to the CM, and the furnishing of such written consent is a condition precedent to such payment. 14.9 The Contractor shall support all requests for Change Orders with a detailed cost breakdown showing cost of materials, labor, equipment, transportation, other items, Contractor's overhead and profit, and total cost, in accordance with methods defined in this Article, and, if the request seeks an extension of the Contract Time, with atime-related diagram which demonstrates specifically why an increase in construction time is needed. 14.10 When a request for a Change Order involves a Subcontractor, the Contractor shall provide quotation from same on Subcontractor's letterhead. The Subcontractor's quote shall list materials, equipment, and labor separately, and show overhead and profit in the manner provided in paragraph 14.9. ARTICLE 15. CHANGE OF THE CONTRACT PRICE 15.1 The Contract Price constitutes the total compensation payable to the Contractor for performing all Work under the Contract Documents. All duties, responsibilities, and obligations assigned to or undertaken by the Contractor shall be at its expense without change in the Contract Price. The Contract Price may only be changed by a Change Order. 15.2 Any claim for an adjustment in the Contract Price shall be in writing. Written notice of any event, action, or non-action which may become the basis of a claim shall be delivered to the CM within three (3) business days of the occurrence, or the beginning of the occurrence, of any such event, action or non-action giving rise to the claim. Such written notice is a condition precedent to the making of a claim, and such notice shall describe the basis of the potential claim with reasonable detail and clarity. A claim shall be made in writing and shall be delivered to the CM no later than fourteen (14) days after such notice. The claim shall describe in detail the basis for the claim, with specific reference to any provisions of the Contract Documents, by paragraph, drawing number, or other specific identification, and shall state the amount claimed and how it is calculated. If the Contractor, at the time the claim is made, is unable to state the amount claimed with accuracy, the Contractor shall so state and provide the estimated amount and the basis on which the amount is to be calculated. At the earliest date practicable, but in no event more than thirty (30) days after Contractor's notice of claim, the Contractor shall supplement the claim with an accurate statement of the amount claimed and how it has been calculated. The Contractor shall provide, in writing, in support of the claim all such explanations, arguments, data, receipts, expert opinions, or other documents or information as the Contractor deems appropriate to be considered in support of the claim. A claim may properly be rejected by the CM by reason of the Contractor's failure to submit adequate or accurate documentation or information, except that within seven (7) days after being given notice that the claim has been rejected on this basis, the Contractor may submit additional GENERAL CONDITIONS FOR CM AT RISK PROJECT 31 of 43 JUNE 2007 EDITION documentation or information. No claim for a change of the Contract Price shall be considered or granted (except solely at the discretion of the CM) unless a claim is so made, nor shall the Contractor be entitled to any increase in the Contract Price unless the Contractor has given notice and made such a written claim within the times required. The CM shall decide, after obtaining the advice of the Owner and the Designer, whether an increase in Contract Price is warranted, and the amount of such increase shall be determined as provided in paragraphs 15.3 through 15.4, below. Any change in the Contract Price resulting from any such claim shall be incorporated in a Change Order. The CM shall advise the Contractor of its decision with respect to the claim within thirty (30) days of its receipt, or of the receipt of additional documentation or information if the absence of such has previously been the basis of rejection of the claim. Any claim on which the CM has not provided its decision to the Contractor within the applicable time period shall be deemed denied. If the Contractor is -not satisfied with the decision of the CM, the Contractor may within seven (7) days of receipt of the CM's decision initiate the mediation process as described in Appendix A to these General Conditions. 15.3 In determining the amount of a Contract Price adjustment, the parties shall apply the following methods, as appropriate: (a) Change in Work: The CM and the Contractor shall negotiate in good faith and attempt to agree upon the value of any change (extra or decrease) in Work prior to the issuance of a Change Order covering said Work. Such Change Order shall set forth the corresponding adjustment to the Contract Price. In the event the CM and the Contractor are unable to agree, the CM shall grant an equitable adjustment in the Contract Price. (b) Emergency Work: In the event of emergency endangering life or property, the Contractor may be directed by the CM to proceed on a time and material basis, whereupon the Contractor shall so proceed and keep accurately, in such form as may be required by the CM, a correct account of costs together with all proper invoices, payrolls, and supporting data therefore. 15.4 Where the Contract Price is to be adjusted, the following limitations shall apply in determining the amount of adjustment: (a) In the case of extra or emergency work, the Contract Price shall not be increased by more than the reasonable, actual, and documented net cost of the extra or emergency work plus ten percent (10%) of such net cost on Work performed by the Contractor and five percent (5%) thereof on any subcontracted Work for overhead and profit combined. (b) In the case of a decrease in Work, the Contract Price shall not be decreased by less than the net cost of the deleted Work plus five percent (5%) of such direct net cost for profit and overhead. The term 'net cost' as used herein shall include, as applicable, and shall be limited to, all direct labor, direct material, direct equipment, labor burden, sales taxes, shipping and handling charges, permits and fees, and insurance and bond premium adjustments, if any, attributable to the change. All other items of cost shall be considered as overhead and covered by the percentages allowed in sections (a) and (b) of this paragraph. GENERAL CONDITIONS FOR CM AT RISK PROJECT 32 of 43 JUNE 2007 EDITION The Contractor shall provide worksheets or tabulations describing the method by which the direct net cost was calculated, and shall provide all data needed to support the calculation of the direct net cost, all in a form acceptable to the CM. ARTICLE 16. UNFORESEEN CONDITIONS 16.1 Should the Contractor encounter unforeseen conditions at the Project site materially differing from those shown on the Drawings or indicated in the Specifications or differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Agreement, the Contractor shall immediately, and in no event more than three (3) business days later, give notice to the CM of such conditions before they are disturbed. The CM shall thereupon promptly notify the Designer and Owner and investigate the conditions. The CM shall as soon as practicable request that the Designer make such changes in the Drawings and/or Specifications as the CM and the Contractor believe are necessary to continue the Work. Any increase or decrease in the Contract Price resulting from such changes shall be adjusted in the manner provided herein for adjustments as to extra and/or additional Work and changes. The CM shall not be liable or responsible for additional work, costs, or changes to the Work that could have been reasonably determined from any reports, surveys, and analyses made available for the Contractor's review or that could have been discovered by the Contractor through the performance of its obligations pursuant to the Contract Documents. ARTICLE 17. CORRECTION OF WORK BEFORE FINAL PAYMENT 17.1 The Owner and the CM have the authority to stop or suspend Work and to order Work removed or to order corrections of defective Work or Work not in compliance with the Contract Documents where such action may be necessary to ensure successful completion of the Work. Any work, materials, fabricated items, or other parts of the Work which have been found by the CM, the Owner or the Designer to be defective or not in accordance with the Contract Documents shall be condemned and shall be removed from the Project by the Contractor, and immediately replaced by new Work in accordance with the Contract Documents at no additional cost to the CM. Work or property of the Owner or others damaged or destroyed by virtue of such condemned Work shall be made good at the expense of the Contractor. Correction of condemned Work described above shall be commenced by the Contractor within twenty-four (24) hours after notice from the CM and shall be pursued to completion. Should the Contractor fail to proceed reasonably with the above-mentioned corrections, the CM may, three (3) days after the notice specified in the preceding sentence, proceed with correction, paying the cost, including costs of uncovering such condemned Work, of such corrections from amounts due or to become due to the Contractor. Condemned Work removed shall be the property of the Contractor and shall be removed from the Project by the Contractor within ten (10) days after notice to remove it, and if not then removed, thereafter may be disposed of by the CM without compensation to the Contractor and the cost of such disposal shall be deducted from amounts due or to become due to the Contractor. Should the cost of correction of the Work and, if applicable, disposal of the condemned Work by the CM exceed the amount due or to become due the Contractor, the Contractor and the Contractor's sureties shall be liable for and shall pay to the CM the amount of such excess. GENERAL CONDITIONS FOR CM AT RISK PROJECT 33 of 43 JUNE 2007 EDITION ARTICLE 18. CORRECTION OF WORK AFTER SUBSTANTIAL COMPLETION; WARRANTIES AND GUARANTIES 18.1 No certificate of completion by any party, Final Payment, occupation of the premises by the Owner, any provision of the Contract Documents, or any other act or instrument of the CM, the Owner or the Designer shall relieve the Contractor from responsibility for negligence, defective material or workmanship, or failure to comply fully with the Contract Documents. 18.2 The Contractor shall, at the Contractor's sole cost and expense, make all necessary repairs, replacements, and corrections of any nature or description, interior or exterior, structural or non-structural, that shall become necessary by reason of defective workmanship or materials which appear within a period of one (1) year from the date of Substantial Completion and acceptance of the Project by the Owner; provided, however that notwithstanding the preceding, if any longer guarantee period is specified for any particular materials or workmanship under the Contract Documents, or under any subcontract, or in connection with any manufactured unit which is installed in the Project, or under the laws of the State of North Carolina, the longer guarantee period shall govern. 18.3 If, within any guarantee period, repairs or changes are required in connection with the Work, which are rendered necessary as the result of the use of materials, equipment, or workmanship which are- inferior, defective, or not in accordance with the terms of the Contract Documents, the Contractor shall, promptly upon receipt of notice from the CM and without expense to the CM: a) Completely repair or replace the Work so that it conforms to the Contract Documents; b) Correct all defects therein; c) Make good all damage which, in the opinion of the CM or the Designer, is the result of the use of materials, equipment, or workmanship which are inferior, defective, or not in accordance with the terms of the Contract Documents; and d) Make good any Work or material, or any equipment or contents disturbed in fulfilling any such guarantee. If, in fulfilling the requirements of the Contract Documents or of any guarantee embraced therein or required thereby, the Contractor disturbs any work, facility, premises, or construction belonging to the Owner, the Contractor shall restore such disturbed work, facility, premises or construction to a condition satisfactory to the Owner, and shall guarantee such restored work to the same extent as if it were Work under the Contract Documents. If the Contractor, after notice, fails to proceed promptly to comply with the terms of the guarantee, the CM may have the defects corrected, and the Contractor and the Contractor's sureties shall be liable for all expenses incurred. "Promptly" is defined as within twenty-four (24) hours for systems necessary to normal operation of the building and within seventy-two (72) hours for all other items. All special guarantees applicable to definite parts of the Work that may be shown in or required by Contract Documents shall be subject to the terms of this paragraph during the first year of the life of such special guarantee. Manufacturer's standard guarantees or warranties which do not comply with the time limit specified herein shall be extended by the Contractor automatically without further action on the part of the CM. GENERAL CONDITIONS FOR CM AT RISK PROJECT 34 of 43 JUNE 2007 EDITION 18.4 In the eleventh calendar month after Substantial Completion of the entire Project, and at the request of the CM, the Contractor, the CM, the Owner and the Designer shall make an inspection of the Work for the purpose of identifying defective workmanship and/or materials. If the Contractor, having been requested to do so by the CM, fails to participate in such inspection, the Contractor shall be conclusively bound by any decision or ruling by the Designer as to any defective workmanship or material and. as to the Contractor's responsibility for its repair or replacement. ARTICLE 19. CM'S RIGHT TO DO WORK 19.1 If, during the progress of the Work or during any period of guarantee, the Contractor fails to prosecute the Work properly or to perform any provision of the Contract Documents, the CM, after three (3) days written notice to the Contractor from the CM, may perform or have performed that portion of the Work and may deduct the cost thereof from any amount due or to become due the Contractor. Notwithstanding any action by the CM under this paragraph, all warranties and bonds given or to be given by the. Contractor shall remain in effect or shall be given by the Contractor. 19.2 Should the cost of such action by the CM exceed the amount due or to become due the Contractor, the Contractor and the Contractor's sureties shall be liable for and shall pay to the CM the amount of such excess. ARTICLE 20. PARTIAL PAYMENTS 20.1 Within thirty (30) days after initial receipt of the Construction Agreement by the Contractor for signatures the Contractor shall submit to the CM a Schedule of Values. The Schedule of Values shall indicate the value of the Work, including applicable overhead and profit, for each Division and section of the Project Specifications. The CM shall be provided with the Contractor's estimating work papers, Subcontractor agreements, supplier quotes, or other documents substantiating these values if so requested in writing by the CM. The Contractor shall provide the requested documentation within seven (7) days after receipt of the CM's written request. The Schedule of Values shall be subject to approval by the CM and the Owner, and if the CM and the Contractor cannot agree upon the Schedule of Va-ues, the Designer shall prepare it, and the Schedule of Values as prepared by the Designer shall be binding on the CM and the Contractor. No Request for Payment shall be certified by the CM until the Schedule of Values has been approved by the Owner. 20.2 Not later than the fifth (5th) day of each calendar month the Contractor shall submit to the CM a Request for Payment for Work done during the previous calendar month. The Request for Payment shall be in form of AIA Document G702 (latest edition), or other published document approved by the CM, and shall show substantially the value of Work done (including the value of material delivered to the Project or stored by the Contractor at another site, subject to the conditions hereinafter set forth) during the previous calendar month, and shall sum up the financial status of the Work with the following information: a) Total Contract Price, including any adjustment thereto. made pursuant to the Contract Documents. b) Value of Work completed and materials properly stored to date. c) Less amount retained. d) Less previous payments. e) Current amount due. GENERAL CONDITIONS FOR CM AT RISK PROJECT 35 of 43 JUNE 2007 EDITION f) Contract Price balance remaining. The Contractor, upon request of the CM, shall substantiate the Request for Payment with invoices, vouchers, payrolls, or other evidence. 20.3 When payment is requested or made on account of stored materials, such materials must be stored on the Owner's property or on such property otherwise designated in writing by the Owner at such places. and in such a manner as may be designated by the CM. However, if approved by the CM, and with permission in writing from the Designer and Owner and under such circumstances as may be required by the CM and the Owner, such materials may be stored in a bonded warehouse. Requests for Payment on account of stored materials shall be accompanied by paid invoices, bills of sale, warehouse receipts, or other documentary evidence establishing Owner's title to such materials, evidence that the stored materials are insured against loss and damage, and such other documentation as required by the CM. Responsibility for the quantity, quality, and condition of such stored materials, whether stored on the Owner's property or away from the Owner's property, shall remain with the Contractor regardless of ownership or title. No payment shall be made on account of materials stored in a bonded warehouse unless the Contractor has acquired written permission from the CM and the Owner for such storage of materials and has complied with all conditions set forth in such permission regarding such storage of materials in a bonded warehouse. 20.4 Any Request for Payment received by the CM on or before the fifth (5th) day of the calendar month shall be certified for payment or returned for re-submission to the Contractor on or before the fifteenth (15th) day of the calendar month. The CM's certification shall be for the amount which was requested or that which the CM has decided was justly due, and shall state in writing to the Contractor and Owner the reasons for withholding payment of any or all of the amount requested. 20.5 The CM may refuse to certify all or part of any payment requested for any of the following reasons: a) Refusal by the Designer to certify or the Owner to pay a payment application by the CM for Work by the Contractor. b) Defective Work not corrected. c) Suits, actions, or claims of any character filed against the Contractor, or due to the operations of the Contractor, or information or notice that a suit, action, or claim will be filed or has been made. d) Information or notice that a Subcontractor or a supplier has not received payment from the Contractor. e) The balance unpaid of the Contract Price is insufficient to complete the Work in the judgment of the CM. f) Damage to the CM, the Owner or another contractor. g) Inability of the Contractor to meet a Completion Date, including an anticipated failure to meet a Completion Date entitling the CM to withhold anticipated damages in accordance with paragraphs 13.11 and 13.12 of these General Conditions. h) Failure to furnish Submittal as required by the Contract Documents on a timely basis in accordance with the Submittal Register. GENERAL CONDITIONS FOR CM AT RISK PROJECT 36 of 43 JUNE 2007 EDITION i) Such other reason as to the CM may appear prudent, proper, or equitable. When grounds for withholding certification have been corrected or removed, the CM shall make any payment due with respect to such certification as a part of its- next payment after such certification. 20.6 No certificate of payment issued or progress payment made shall constitute an acceptance of the Work or any part thereof. 20.7 The amount certified by the CM for payment shall be ninety percent (90%) of the value of Work completed and materials stored since the CM's last certification as shown on the Request for Payment, less any amounts not certified in accordance with paragraph 20.4, and this amount shall be paid by the CM on or before the last business day of the month, but payment shall not be past due if paid within fifteen (15) days thereafter. 20.8 If the Contractor's Work has progressed in accordance with the Master Schedule as of a target date mutually agreed upon by the Owner, the Designer and the CM, and the Contractor has provided to the CM the written consent of its sureties to the cessation of further percentage retention, the amount certified for payment with respect to subsequent Requests for Payment may, in the discretion of the CM, be one hundred percent (100%) of the value of Work completed and materials stored since the CM's last certification as shown on the Request for Payment, less any amounts not certified in accordance with paragraph 20.4; provided, however, that the aggregate of periodic payments shall not exceed ninety-five percent (95%) of the Contract Price. ARTICLE 21. FINAL PAYMENT 21.1 Final Payment shall not be due to the Contractor until Final Completion 21.2 Upon Substantial Completion, the CM in conjunction with the Designer shall prepare and submit to the Contractor deficiency lists identifying all portions of the Work which are shown at that time to be incomplete or defective. Within thirty (30) days of receipt of any deficiency list, the Contractor shall complete and correct all items on that list along with all other Work required to achieve Final Completion of the Work. At any time prior to completion of the period of warranty, the CM may submit to the Contractor supplemental deficiency lists, in which case the Contractor shall complete or correct any and all new items identified on the supplemental deficiency lists within the time period stipulated in paragraph 18.3 of these General Conditions. 21.3 The making and acceptance of Final Payment shall constitute a waiver of all claims by the CM except: a) Claims arising from unsettled liens or claims against the Contractor. b) Defective Work or materials appearing after Final Payment. c) Failure of the Contractor to perform the Work in accordance with the Contract Documents. d) As conditioned in the Performance Bond. e) Claims made prior to Final Payment which remain unsettled. f) Amounts due arising under Articles 18 and 28 of these General Conditions. GENERAL CONDITIONS FOR CM AT RISK PROJECT 37 of 43 JUNE 2007 EDITION g) Claims for recovery of overpayment based upon incorrect measurement, estimate, or certificate. 21.4 The making and acceptance of Final Payment shall constitute a waiver of all claims by the Contractor except. those claims previously made in writing pursuant to paragraph 15.2 of these General Conditions and not finally resolved. 21.5 The CM shall not be required to make Final Payment unless and until (i) the Designer has certified based on the Designer's observations and information that all of the Work by the Contractor under the Contract Documents has been completed in accordance with the Contract Documents, and (ii) the Work by the Contractor has been approved by all federal, state and local agencies having jurisdiction. 21.6 The final Request for Payment shall be identified on its face as such and shall be presented by the Contractor to the CM within thirty (30) days of completion of the Work. Final payment of the retained amount due the Contractor shall be made by the CM within thirty (30) days after the later of (i) full and Final Completion of all Work required of the Contractor by the Contract Documents, and certification of such Work in accordance with paragraph 21.5; (ii) submission of the affidavits and other documentation required by Article 22; (iii) submission by the Contractor of a Request for Payment identified on its face as final. ARTICLE 22. CONTRACTOR, SUBCONTRACTOR AND SUPPLIER AFFIDAVIT 22.1 The Final Payment due the Contractor on account of the Contract Documents shall not become due until the Contractor has furnished to the CM: (A) an affidavit by the Contractor signed, sworn, and notarized to the effect that all payments for materials, services, or for any other reason in connection with the Work or performance of the Contract Documents have been satisfied and that no claims or liens exist against the Contractor in connection with the same; (B) affidavits from each Subcontractor and supplier signed, sworn, and notarized to the effect that (i) each such Subcontractor or supplier has been paid in full by the Contractor for all Work performed and/or materials supplied by it in connection with the Project, and (ii) that all payments for materials, services, and for any other reason in connection with the subcontract or supply contract have been satisfied and that no claims or liens exist against the Subcontractor or supplier in connection therewith; and (C) the written consent of the Contractor's sureties to Final Payment. In the event that the Contractor cannot obtain an affidavit, as required above, from any Subcontractor or supplier, the Contractor shall state in the Contractor's affidavit that no claims or liens exist against such Subcontractor or supplier to the best of the Contractor's knowledge, and that if any appear afterwards, the Contractor shall indemnify and save the CM and the Owner harmless for all costs and expenses, including attorney's fees, on account thereof. ARTICLE 23. ASSIGNMENTS AND SUBCONTRACTS 23.1 The Contractor shall not assign any portion of this Agreement nor subcontract the Work in its entirety without the prior written consent of the CM. Except as may be required under terms of the bonds required by the Contract Documents, no funds or sums of money due or to become due to the Contractor under the Contract Documents may be assigned. ARTICLE 24. MEASUREMENTS 24.1 Before ordering material or doing Work which is dependent for proper size or installation upon coordination with building conditions, the Contractor shall field verify all dimensions and shall be responsible for the correctness of same. No consideration will be given for any claim based on differences between the actual dimensions and those indicated in the GENERAL CONDITIONS FOR CM AT RISK PROJECT 38 of 43 JUNE 2007 EDITION Contract Documents. Any discrepancies between the Contract Documents and the existing conditions shall be referred to the Designer by the CM for adjustment before any Work affected thereby is begun. ARTICLE 25. CONTRACTOR AND SUBCONTRACTOR RELATIONSHIPS 25.1 Within thirty (30) days after initial receipt of the Construction Agreement by the Contractor for signatures, the Contractor shall submit to the CM for acceptance a current list of the names of Subcontractors and such other persons and organizations (including those who are to furnish materials or equipment fabricated to a special design) proposed for any and all portions of the Work. The Contractor shall provide this list at this time even if the Contractor was required to submit a list of proposed Subcontractors with the Contractor's bid. The CM shall promptly reply to the Contractor in writing stating whether or not the CM, after due investigation, has objection to any such proposed person or entity or if it needs additional information to evaluate the persons or entities on the list. Failure of the CM to reply within ten (10) days after the Contractor has furnished all required information shall constitute notice of no objection. The Contractor shall not contract with any such proposed person or entity to which the CM has made reasonable objection. If the CM has reasonable objection to any such proposed person or entity, the Contractor shall submit a substitute to whom the CM has no reasonable objection. The Contractor shall make no substitution for any Subcontractor, person, or entity previously allowed without first notifying the CM in writing and no substitution may be made if the CM makes a reasonable objection to such substitution. 25.2 The Contractor agrees that the terms of the Contract Documents, including all portions thereof, shall apply to all Subcontractors as if they were the Contractor, and that the Subcontractors shall, by means of their subcontracts, be bound by all the terms of the Contract Documents. 25.3 Payments to Subcontractors by the Contractor shall be made in accordance with the provisions of N.C. Gen. Stat. §143-134.1. ARTICLE 26. USE OF PREMISES 26.1 The Contractor shall confine apparatus, the storage of materials, the operations of workers, and the disposal of material to limits indicated by law, ordinances, permits, and directions of the CM, if any. 26.2 The Contractor shall not load or permit any part of the Work to be loaded with a weight that will endanger its safety, intended performance, or configuration. 26.3 The Contractor shall enforce all of the CM's instructions, including, but not limited to, those regarding signs, advertisements, fires, and. smoking. ARTICLE 27. CUTTING, PATCHING AND FITTING 27.1 The Contractor shall do all cutting, fitting, and patching of the Work that may be required to make its several parts come together properly and fit it to receive or to be received by Work shown in or which can be reasonably implied from the Contract Documents. ARTICLE 28. DISPUTE RESOLUTION 28.1 The laws of the State of North Carolina shall apply to the interpretation and enforcement of this Agreement. Any and all suits or actions to enforce, interpret, or seek damages with GENERAL CONDITIONS FOR CM AT RISK PROJECT 39 of 43 JUNE 2007 EDITION respect to any provision of, or the performance or nonperformance of, this Agreement shall be brought in the General Court of Justice of North Carolina sitting in Orange County, North Carolina, and it is agreed by the parties that no other court shall have jurisdiction or venue with respect to such suits or actions. Appendix A shall be a part of the Contract Documents. Prior to initiating an action under this Article, any party to this Agreement shall initiate the mediation process as provided in Appendix A to these General Conditions. 28.2 Any person or firm that expressly or impliedly agrees to perform labor or services or to provide material, supplies, equipment, work, performance or payment bonds, insurance or indemnification for the construction of the Project or the Work shall be deemed a party to this Agreement solely for the purpose of this Article 28. The Contractor, by means of its subcontracts, shall specifically require its Subcontractors to be bound by this Article. ARTICLE 29. TAXES 29.1 The Contractor has included in the Contract Price, and shall pay, all taxes assessed by any authority on the Work or on the labor and materials used therein. The Contractor shall maintain all tax records during the life of the Project and furnish the CM with a complete listing of all taxes paid by taxing authority, invoice number, date, amount, etc. in a form acceptable to the CM and the Owner. The Contractor is required to maintain a file showing taxes paid on the Project for three (3) years after Final Payment or turn said documents over to the Owner for its files. 29.2 The following is a list of requirements to be followed by the Contractor in maintaining proper records and reporting the North Carolina Sales and Use Tax and Local Sales and Use Tax. The Contractor shall comply fully with the requirements outlined below, in order that the Owner may recover the amount of the tax permitted under the law. a) It shall be the Contractor's responsibility to furnish the CM documentary evidence showing the materials used and sales and use tax paid by the Contractor and by each of its Subcontractors. Such evidence shall be transmitted to the CM with each. pay request regardless of whether taxes were paid in that period covered by the pay request. b) The documentary evidence shall consist of a certified statement by the Contractor and by each of the Contractor's Subcontractors individually, showing total purchases of materials from each separate vendor and total sales and use taxes paid to each vendor. Certified statements must show the invoice number, or numbers, covered, and inclusive dates of such invoices. c) Materials used from Contractor's or Subcontractor's warehouse stock shall be shown in a certified statement at warehouse stock prices. d) The Contractor shall not be required to certify the Subcontractor's statements. ARTICLE 30. OPERATION OF OWNER'S FACILITIES 30.1 The Contractor agrees that all Work done under the Contract Documents shall be carried on in such a manner so as to ensure the regular and continuous operation of the adjoining or adjacent facilities. The Contractor further agrees that the sequence of operations under the Contract Documents shall be scheduled and carried out so as to ensure said regular and continuous operation. The .Contractor shall not close any areas of construction until so authorized by the CM. The Contractor shall control operations to assure the least inconvenience to the public. Under all circumstances, safety shall be the most important consideration. GENERAL CONDITIONS FOR CM AT RISK PROJECT 40 of 43 JUNE 2007 EDITION ARTICLE 31. THIRD PARTY BENEFICIARY CLAUSE 31.1 It is specifically agreed between the parties executing the Agreement that, with the specific exception set forth paragraph 7.24 of these General Conditions, and that exception only, the Contract Documents and the provisions therein are not intended to make the public, or any member thereof, athird-party beneficiary of the Agreement, or to authorize anyone not a party to the Contract Documents to maintain a suit for personal injuries or property damage pursuant to the terms of provisions of the Contract Documents. ARTICLE 32. MEASUREMENT OF QUANTITIES 32.1 All Work completed under the Contract Documents shall be measured by the Contractor using United States customary units of measurement. The method of measurement and computations to be used in determination of quantities of material furnished and of Work performed under the Contract Documents shall be those methods set forth in the Contract Documents or, if not specifically set forth therein, the method generally recognized as conforming to good engineering practice. ARTICLE 33. TERMINATION BY THE CM FOR CAUSE 33.1 If the Contractor fails to begin or complete the Work under the Contract Documents within the time specified, or fails to perform the Work with sufficient labor and equipment or with sufficient materials to insure the prompt completion of said Work, or shall perform the Work unsuitably or shall discontinue the prosecution of the Work for seven (7) consecutive days, or if the Contractor shall become insolvent, be declared bankrupt, commit any act of bankruptcy or insolvency, allow any final judgment to stand against the Contractor or its affiliated companies unsatisfied for a period of forty-eight (48) hours, make an assignment for the benefit of creditors, or for any other cause whatsoever shall not carry on the Work in an acceptable manner, the CM may give notice in writing to the Contractor and the Contractor's sureties of such delay, neglect, or default, specifying the same, and if the Contractor within a period of seven (7) days after such notice shall not proceed in good faith and with reasonable speed to correct such delay, neglect, or default in accordance with such notice, the CM shall have full power and authority, to the extent permitted by law, without violating the Contract Documents, to take the prosecution of the Work out of the hands of the Contractor, to appropriate or use any or all materials and equipment at the Project as may be suitable and acceptable, and may enter into an agreement for the completion of the Work or pursue such other methods as in the CM's sole discretion and opinion shall be necessary or appropriate for the completion of the Work in an acceptable manner. All costs and charges incurred by the CM in proceeding in accordance with the preceding sentence, including attorney's fees, and all costs incurred by the CM in completing the Work shall be deducted from any amount due or which becomes due the Contractor. If such costs and expenses incurred by the CM shall be less than the sum which would have been payable under Contract Documents if it had been completed by the Contractor, then the Contractor shall be entitled to receive the difference, but if such costs and expenses shall exceed the sum which would have been payable under the Contract Documents, the Contractor and the Contractor's surety or sureties shall be liable to the CM for and shall pay to the CM the amount of such excess. 33.2 If the CM terminates the Agreement pursuant to this Article 33 and later it is determined that the Contractor had not substantially failed to perform in accordance with the terms of this Article, then the termination will be considered a termination for convenience under Article 34. ARTICLE 34. TERMINATION OR SUSPENSION BY THE CM FOR CONVENIENCE GENERAL CONDITIONS FOR CM AT RISK PROJECT 41 of 43 JUNE 2007 EDITION 34.1 The CM may, without cause, order the Contractor to terminate, suspend, delay, or interrupt the Work in whole or in part for such period of time as the CM may determine. 34.2 If the Contractor is subsequently ordered by the CM to resume the Work, any cost or expenses to which the Contractor may be entitled by reason of the suspension, delay, or interruption shall be recoveredlby means of a Change Order in accordance with Articles 13 and 14 of these General Conditions and the Contractor's Construction Schedule and the Master Schedule shall be adjusted in accordance with Article 13 of these General Conditions. 34.3 The CM shall terminate the Work or portion thereof by written notice when the Contractor is prevented from proceeding with the Work as a direct result of an executive order of the President with respect to the prosecution of war or in the interest of national defense. 34.4 In the event of termination by the CM under this Article, the Contractor shall be entitled to receive the reasonable and documented direct costs, incurred prior to termination, including the cost of materials purchased for the Work which. purchases cannot be canceled or which material cannot reasonably be used by the Contractor on other work, and the cost of demobilizing at the Project site in a safe and efficient manner, plus ten percent (10%) thereof for overhead and profit, subject to the following conditions: a) When the Contract is terminated before completion of all items of Work, payment shall be made for the actual number of units or items of Work completed at the applicable contract prices, or as mutually agreed for items of Work partially complete. If a mutual agreement cannot be reached, the CM shall have the authority to make such equitable adjustment as it deems warranted and the Final Payment shall be made accordingly. b) Reimbursement for organization of any Work and moving equipment to and from the job shall be considered when not otherwise provided for in the Contract Documents where the volume of .completed Work is too small to compensate the Contractor for those expenses under unit prices. If a mutual agreement cannot be reached, the CM will have the authority to make such equitable adjustment as it deems warranted and the Final Payment will be made accordingly. c) Materials obtained by the Contractor for the Work that have been inspected and accepted by the Designer and that are not incorporated in the Work shall, at the request of the Contractor, be purchased from the Contractor at the Contractor's actual cost as shown by receipted bills and actual costs records at such points of delivery as may be determined by the CM. d) No payment shall be made by the CM to the Contractor except as herein above provided. No claim for loss of anticipated profits shall be considered or allowed. e) Termination of the Contract shall not relieve the Contractor of its responsibilities for any completed portion of the Work nor shall it relieve its sureties of their obligation for and concerning any just claims arising out of the Work performed. f) In the event the Contractor has performed defective Work which Contractor does not correct prior to demobilizing, the CM shall be authorized to withhold the cost of correction as estimated by the CM in good faith. In the event of termination or suspension by the CM for convenience, the Contractor shall not be entitled to any other compensation, including compensation for lost profit, lost GENERAL CONDITIONS FOR CM AT RISK PROJECT 42 of 43 JUNE 2007 EDITION opportunity, or any other direct, incidental or consequential cost, loss or damage of any type, including punitive, exemplary or treble damages. ARTICLE 35. MINORITY BUSINESS ENTERPRISE PROGRAM 35.1 The Contractor shall at all times comply with the latest edition of the Orange County Minority Business Enterprise Policy. All documentation substantiating compliance with the requirements of this program shalt be delivered to the CM as stipulated in the Contract Documents. A copy of the Orange County Minority Business Enterprise Policy is Appendix C hereof and is included in the Project Manual. ARTICLE 36. GENERAL 36.1 If any provision of the Agreement shall be declared invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect. 36.2 The titles to Articles herein are for convenience only, are not substantive parts of the General Conditions, and are not to be considered in interpreting the Contract Documents. END OF GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -- CONSTRUCTION MANAGER AT RISK 0910range County .Library and Office Complex General Conditions final version approved by BOCC 11508.doc GENERAL CONDITIONS FOR CM AT RISK PROJECT 43 of 43 JUNE 2007 EDITION THE AMERICAN INSTITUTE OF ARCHITECTS ,` , i, Bond No.105134429 AIA Document A312 Performance Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): The Resolute Building Company 211 Cloister Ct. Chapel Hill, NC 27514 OWNER/OBLIGEE(Name and Address): Telesis Construction Management, LLC 1000 Corporate Drive, Suite 109 Hillsborough, NC 27278 SURETY (Name and Principal Place of Business): Travelers Casualty and Surety Company of America Construction Services One Tower Square Hartford, CT 06183 CONSTRUCTION CONTRACT Date: September 2, 2008 Amount: Four Million Seven Hundred Eighty Thousand Nine Hundred Twenty Two and 00/100 Dollars ($4,780,922.00) Description (Name and Location): Orange County Office Building, 131 Margaret Lane, Hillsborough, NC 27278. BOND Date (Not earlier than Construction Contract Date): September 2, 2008 Amount: Four Million Seven Hundred ~ ousand Nine Hundred Twenty Two and 00/100 Dollars ($4,780,922.00) gv~ G j oQPOA'~~~Cp~L Modifications to this Bond: o ~ s~ N 2 CONTRACTOR AS PRINCIPAL 'fib ~ Company: (Cor ate The Resolute Building Company Signature: Name and Title: ~ ~~~~ (Any additional signatures appear on page 3) ® None SURETY ^ See Page 3 Company: (Corporate Seal) Travelers Casualty and Surety Company of America Signature: Name and TI le: Scott D. Mathers, Attorney-in-Fact (FOR INFORMATION ONLY -Name, Address and Telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer (919) 676-8834 or other party): Wachovia Insurance Services Brockwell Associates, Inc. P.O. Box 97787 1911 Hillandale Road, Suite 1050 Raleigh, NC 27624-7787 Durham, NC 27705 AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND .DECEMBER 1984 ED. •AIA THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 THIRD PRINTING • MARCH 1987 A312-1984 1 The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner for the performance of the Construction Contract, which is incorporated herein by reference. 2 If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond, except to participate in conferences as provided in Subparagraph 3.1. 3 If there is no Owner Default, the Surety's obligation under this Bond shalt arise after: 3.1 .The Owner has notified the Contractor and the Surety at its address described in Paragraph 10 below that the Owner is considering declaring a Contractor Default and has requested and attempted to arrange a conference with the Contractor and the Surety to be held not later than fifteen days after receipt of such notice to discuss methods of performing the Construction Contract. If the Owner, the Contractor and the Surety agree, the Contractor shall be allowed a reasonable time to perform the Construction Contract, but such an agreement shall not waive the Owner's right, if any, subsequently to declare a Contractor Default; and 3.2 The Owner has declared a Contractor Default and formally terminated the Contractor's right to complete the contract. Such Contractor Default shall not be declared earlier than twenty days after the Contractor and the Surety have received notice as provided in Subparagraph 3.1; and 3.3 The Owner has agreed to pay the Balance of the Contract Price to the Surety in accordance with the terms of the Construction Contract or to a contractor selected to perform the Construction Contract in accordance with the terms of the contract with the 3.4 Owner. 4 When the Owner has satisfied the conditions of Paragraph 3, the Surety shall promptly and at the Surety's expense take one of the following actions: 4.1 Arrange for the Contractor, with consent of the Owner, to perform and complete the Construction Contract; or 4.2 Undertake to perform and complete the Construction Contract itself, through its agents or through independent contractors; or 4.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Construction Contract, arrange for a contract to be prepared for execution by the Owner and the contractor selected with the Owner's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the amount of damages as described in Paragraph 6 in excess of the Balance of the Contract Price incurred by the Owner resulting from the Contractor's default; or 4.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances: .1 After investigation, determine the amount for which it may be liable to the Owner and, as soon as practicable after the amount is determined, tender payment therefor to the Owner; or ,2 Deny liability in whole or in part and notify the Owner citing reasons therefor. 5 If the Surety does not proceed as provided in Paragraph 4 with reasonable promptness, the Surety shall be deemed to be in default on this Bond fifteen days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations under this Bond, and the Owner shall be entitled to enforce any remedy available to the Owner. If the surety proceeds as provided in Subparagraph 4.4, and the Owner refuses the payment tendered or the Surety has denied liability, in whole or in part, without further notice the Owner shat{ be entitled to enforce any remedy available to the Owner. 6 After the Owner has terminated the Contractor's right to complete the Construction Contract, and if the Surety elects to act under Subparagraph 4.1, 4.2, or 4.3 above, then the responsibilities of the Surety to the Owner shall not be greater than those of the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. To the limit of the amount of this Bond, but subject to commitment by the Owner of the Balance of the Contract Price to mitigation of costs and damages on the Construction Contract, the Surety is obligated without duplication far: 6.1 The responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; 6.2 Additional legal, design professional and delay costs resulting from the Contractors Default, and resulting from the actions or failure to act of the Surety under Paragraph 4; and 6.3 Liquidated damages, or if not liquidated damages are specified in the Construction Contract, actual damages caused by delayed performance or non- performance of the Contractor. 7 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Construction Contract, and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated obligations. No tight of action shall accrue on this Bond to any person or entity other than the Owner or its heirs, executors, administrators or successors. 8 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. 9 Any proceeding, IegaF or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and shall be instituted within two years after Contractor Default or within two years after the Contractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond, whichever occurs first. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312-1984 2 10 Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. 11 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond. 12 DEFINITIONS 12.1 Balance of the Contract Price: The total amount payable by the Owner to the Contractor under the Construction Contract after all proper adjustments have been made, including allowance to the Contractor of any amounts received or to be received by the Owner in MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: settlement of insurance or other claims for damages to which the Contractor is entitled, reduced by all valid and proper payments made to or on behalf of the Contractor under the Construction Contract. 12.2 Construction Contract: The agreement between the Owner and the Contractor identified on the signature page, including all Contract Documents and changes thereto. 12.3 Contractor Default: Failure of the Contractor, which has neither been remedied nor waived, to perform or otherwise to comply with the terms of the Construction Contract. 12.4 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof. (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Name and Title: Address: Signature: Name and Title: Address: AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. •AIA THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312-1984 THIRD PRINTING • MARCH 1987 THE AMERICAN INSTITUTE OF ARCHITECTS ~ ~Il A/A Document A311 Labor and Material Payment Bond THIS BOND IS ISSUED SIMULTANEOUSLY WITH PERFORMANCE BOND IN FABOR OF THE OWNER CONDITIONED ON THE FULL AND FAITHFUL PERFORMANCE OF THE CONTRACT Bond #105134429 KNOW ALL MEN BY THESE PRESENTS: that The Resolute Building Company 211 Cloister Ct. Chapel Hill, NC 27514 (Here insert full name and address or legal title of Contractor) as Principal, hereinafter called Principal, and, Travelers Casualty and Surety Company of America Construction Services One Tower Square, Hartford, CT 06183 (Here insert full name and address or legal title of Surety) as Surety, hereinafter called Surety, are held and firmly bound unto Telesis Construction Management, LLC 1000 Corporate Drive, Suite 109 Hillsborough, NC 27278 (Here insert full name and address or legal title of Owner) as Obligee, hereinafter called Owner, for the use and benefit of claimants as hereinbelow defined, in the amount of Four Million Seven Hundred Eighty Thousand Nine Hundred Twenty Two and 00/100 Dollars ($4,780,922.00) (Here insert a sum equal to at least one-half of the contract price) for the payment whereof Principal and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, Principal has by written agreement dated September 2, 2008, entered into a contract with Owner for (Here insert full name, address and description of project) Orange County Office Building, 131 Margaret Lane, Hillsborough, NC 27278 in accordance with Drawings and Specifications prepared by Brockwell Associates, Inc. 1911 Hillandale Road, Suite 1050, Durham, NC 27705 (Here insert full name and address or legal title of Architect) which contract is by referenced made a part hereof, and is hereinafter referred to as the Contract. AIA DOCUMENT A311 . PERFORMANCE BOND AND LABOR AND MATERIAL PAYMENT BOND. AIA FEBRUARY 1970 ED.. THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 3 LABOR AND MATERIAL PAYMENT BOND NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if Principal shall promptly make payment to all claimants as hereinafter defined, for all labor and material used or reasonably required for use in the performance of the Contract, then this obligation shall be void; otherwise it shall remain in full force and effect, subject, however, to the fol- lowing conditions: 1. A claimant is defined as one having a direct con- tract with the Principal or with a Subcontractor of the Principal for labor, material, or both, used or reasonably required for use in the performance of the Contract, labor and material being construed to include that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental or equipment directly applicable to the Contract. 2. The above named Principal and Surety hereby jointly and severally agree with the Owner that every claimant as herein defined, who has not been paid in full before the expiration of a period of ninety (90) days after the date on which the last of such claimant's work or labor was done or performed, or materials were furnished by such claimant, may sue on this bond for the use of such claimant, prosecute the suit to final judgement for such sum or sums as may be justly due claimant, and have execution thereon. The Owner shall not be liable for the payment of any costs or expenses of any such suit. 3. No suit or action shall be commenced hereunder by any claimant: a) Unless claimant, other than one having a direct contract with the Principal, shall have given written notice to any two of the following: the Principal, the Owner or the Surety above named, within ninety (90) days after such claimant did or performed the last of the work or labor, or furnished the last of the materials for which said claim is made, stating with substantial Signed and sealed this 2"d day of September, 2008. fitness) Je ' er S. Beasley accuracy the amount claimed and the name of the party to whom the materials were furnished, or for whom the work or labor was done or performed. Such notice shall be served by mailing the same by registered mail or certified mail, postage prepaid, in an envelope ad- dressed to the Principal, Owner or Surety, at any place where an office is regularly maintained for the trans- action of business, or served in any manner in which legal process may be served in the state in which the aforesaid project is located, save that such service need not be made by a public officer. b) After the expiration of one (1) year following the date on which Principal ceased Work on said Contract, it being understood, however, that if any limitation em- bodied in this bond is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law. c) Other than in a state court of competent jurisdiction in and for the county or other political subdivision of the state in which the Project, or any part thereof, is situated, or in the United States District Court for the district in which the Project, or any part thereof, is sit- uated, and not elsewhere. 4. The amount of this bond shall be reduced by and to the extent of any payment or payments made in good faith hereunder, inclusive of the payment by Surety of mechanics' liens which may be filed of record against said improvement, whether or not claim for the amount of such lien be presented under and against this bond. 0J~1.DING ~.~ oQQ~Rgr C~~ ~ ~ sue- The Resolute Buildina Comaanv ~~.'. ~ r ~ ~ ~~ 111ie) Travelers Cas al and Sure Com an of America (Surety) (Seal) Scott D. Mathers, Attorney-In-Fact (ride) AIA DOCUMENT A311 • PERFORMANCE BOND AND LABOR AND MATERIAL PAYMENT BOND •AIA FEBRUARY 1970 ED. • THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE:, N.W., WASHINGTON, D.C. 20006 WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER .A. POWER OF ATTORNEY TRAVELERS J Farmington Casualty Company St. Paul Guardian Insurance Company Fidelity and Guaranty Insurance Company St. Paul Mercury Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. Travelers Casualty and Surety Company Seaboard Surety Company Travelers Casualty and Surety Company of America St. Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company Attorney-In Fact No. 214644 Certificate No. ~ ti ~ `°l' KNOW ALL MEN BY THESE PRESENTS: That Seaboazd Surety Company is a corporation duly organized undet- the laws of the State of New York, that St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company and St. Paul Mercury Insurance Company are corporations duly organized under the laws of the State of Minnesota, that Farmington Casualty Company, Travelers Casualty and Surety Company, and Travelers Casualty and Surety Company of America are corporations duly organized under the laws of the State of Connecticut, that United States Fidelity and Guaranty Company is a corporation duly organized under the laws of the State of Maryland, that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc. is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint Scott D. Mathers, Rhonda P. Newton, Karen M. Bracey, and Jennifer S. Beasley of the City of Raleigh ,State of Nprth C',arnlina ,their true and lawful Attorney(s)-in-Fact, each in their separate capacity if more than one is named above, to sign, execute, seal and acknowledge any and all bonds; recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their.;l~us(rtess of,„guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or per-I in a ons o~l~ceedings allowed by law. -~~ " <` -~ IN WITNESS WHEREOF, the Companies have caused this insti ~{irl~~nt~i„Ibe,~ ~u, d air I Muir-tcpr~orate seals to be hereto affixed, this da of October 2007 - - ' Y 12th r ~ Farmington Casualty C >~ -,r , St. Paul Guardian Insurance Company Fidelity and Guaranty ra '~orilpa ~1 St. Paul Mercury Insurance Company Fidelity and Guaranty Insu a nderw ers, Inc. Travelers Casualty and Surety Company Seaboard Surety Company Travelers Casualty and Surety Company of America St. Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company pI.64A~~ ~ ~r~" VFl0.E~ \PW.NMS•G ~• j 1Nww-"'*-r..- P tY Ah0 YApQ ~" 00'P: Al L 'k r y/ O - 9 ,,~++•JP ......3.~..,~9~.•* gJ ~ S NWWII!>y Wy~,,~ ) P.PORA i y Gy c, O ` r ~ 6 O~ N ~y e:' 1 fc, :' ~,: c~ G 4 ~+ ~1982~' o NOdIPORAT9) TL Z ;ICpRPORA>F m } W:~GO Tf ~, op ,^ Y ,W Z ~~, r 1977 g 1927 asr ~ , ~: z; --- :~_ ~ "AarFOw, 't"RrFO ~ <O gb 1D br 1951 s, ,t• ~y o, ~`:SE AL~~Ojf ~~6:.SSRL iz' ~, CONN. o Ww6 £ m 1896! Nt`N c e ° lsw. A» j: ~>. s.........'P ,r~ yt PNa t ~ vi ~Y! AN1 ~~, State of Connecticut City of Hartford ss. By: Georg Thompson, enior ice President On this the 12th da of October 2007 Y ,before me personally appeared George W. Thompson, who acknowledged himself to be the Senior Vice President of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., Seaboazd Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guazdian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaanty Company, and that he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. ~C,.T~ In Witness Whereof, I hereunto set my hand and official seal. ~ My Commtsston expires the 30th day of June, 201 1. ~ AtIBUG '~ ~~ Marie C. Tetreault, Notary Public 58440-5-07 Printed in U.S.A. THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER This Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, which resolutions aze now in full force and effect, reading as follows: RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys-in-Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her; and it is FURTHER RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary; and it is FURTHER RESOLVED; that any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary; or (b) duly executed (under seal, if required) by one or more Attorneys-in-Fact and Agents pursuant [o the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED, that the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, -any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any power of attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys-in-Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof; and any such power of attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified. by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached. I, Kori M. Johanson, the undersigned, Assistant Secretary, of Farmington Casualty Company, Fidelity and Guazanty Insurance Company, Fidelity and Guazanty Insurance Underwriters, Inc., Seaboard Surety Company, St. Paul Fire and Marine Insurance Co~ttpany, St. Paul Guardian Insurance Company; St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Sure,~~,- ~, mpanf'rlmericaa~d United States Fidelity and Guaranty Company do hereby certify that the above and foregoing is a true and correct copy of the Power. t 3tt, ~i n ~e ~e d b~ ompanies, which is in full force and effect and has not been revoked. ~ ~ ~ ~,, f IN TESTIMONY WHEREOF, I have hereunto set my hand and-.itl it~'KY the .e~t1s of ~aul C~tdfp~nies this 2nd day of September 20 _~g ~~ , ~°" Kori M. Johans Assistant Secretary pI.SUq $UAfTy yFtPE 6 ~N,~Ng ~ 1NSIiq MITT ANp Hb~Y "F{YI~ ~ ~ ~ ~ we~ORpTrp y ~~C A>F:C'1 uei i~pPPORATfiP''< ~, /''`'''~ Zb~ 982 o ~ 1977 1927 ~ ~°t _ 1 f at -_ ~' wwr~onn,~ ~~ ~O r 1951 a ~ ~'•SEAG o3 ~`+. SAL,•'a° WOo ~' ~ '^ 1x196 y • ~' OFNEVt R~t+cF !~ ENV 1s .....: ~d bf ~ >P+ s AIN~ To verify the authenticity of this Power of Attorney, call 1-800-421-3880 or contact us at www.travelersbond.com. Please refer to the Attorney-In-Fact number, the above-named individuals and the. details of the bond to which the power is attached. WARNING: THIS POWER OF ATTORNEY IS ti DUAL TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA OBLIGEE Hartford, Connecticut 06183 RIDER This Rider is to be attached to and forms a part of Performance Bond No. 105134429 issued by Travelers Casualty and Surety Company of America, (hereinafter referred to as "Surety"), as Surety, on the 2nd day of September, 2008 (hereinafter referred to as "Bond"). WHEREAS, on or about the 2nd day of September, 2008, The Resolute Building Company (hereinafter called the "Principal"), entered into a written agreement with Telesis Construction Management, LLC (hereinafter called the "Primary Obligee") for the construction of the Orange County Office Building, 131 Margaret Lane, Hillsborough, NC 27278 (hereinafter called the "Contract"); and WHEREAS, the Principal and the Surety executed and delivered to said Primary Obligee the Bond in connection with the Contract; and WHEREAS, the Primary Obligee has requested the Principal and the Surety to execute and deliver this Rider. NOW, THEREFORE, the undersigned .hereby agree. and stipulate that Orange County, PO Box 8181, Hillsborough, NC 27278 shall be added to said bond as a named obligee (hereinafter referred to as "Additional Obligee"), subject to the conditions set forth below: 1. The Surety shall not be liable under the Bond to the Primary Obligee, the Additional Obligee, or any of them, unless the Primary Obligee, the Additional Obligee, or any of them, shall make payments to the Principal (or in the case the Surety arranges for completion of the Contract, to the Surety) strictly in accordance with the terms of said Contract as to payments and shall perform all other obligations to be performed under said Contract at the time and in the manner therein set forth. 2. The aggregate liability of the Surety under the Bond, to any or all of the obligees (Primary and Additional Obligees), as their interests may appear, is limited to the penal sum of the Bond; the Additional Obligee's rights hereunder are subject to the same defenses Principal and/or Surety have against the Primary Obligee, and the total liability of the Surety shall in no event exceed the amount recoverable from the Principal by the Primary Obligee under the Contract. At the Surety's election, any payment due under the performance bond may be made by joint check payable to one or more of the obligees. 3. The Surety may, at its option, make any payments under said Performance Bond by check issued jointly to all of the obligees. Except as herein modified, the Bond shall be and remains in full force and effect. Signed this 9th day of October, 2008. The Resolute Building Company (Principal) By: David F. Anna, CE , Telesis Construction Management, LLC (Primary Obligee) B~ L~~~ Travelers Casual nd Surety Company of America By: Scott D. Mathers, Attorney-in-Fact WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER 1 ~~ POWER OF ATTORNEY TRAVELERS .J Farmington Casualty Company St. Paul Guardian Insurance Company ~ Fidelity and Guaranty Insurance Company St. Paul Mercury Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. Travelers Casualty and Surety Company Seaboard Surety Company 'IY~avelers Casualty and Surety Company of America St. Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company Attorney-In Fact No. 214644 CertiTcate No. ~ o ~ ~ ~ ~ ~ ~ ~° KNOW ALL MEN BY THESE PRESENTS: That Seaboard Surety Company is a corporation duly organized under the laws of the State of New York, that St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company and St. Paul Mercury Insurance Company are corporations duly organized under the laws of the State of Minnesota, that Farmington Casualty Company, Travelers Casualty and Surety Company, and Travelers Casualty and Surety Company of America are corporations duly organized under the laws of the State of Connecticut, that United States Fidelity and Guaranty Company is a cotporation duly organized under the laws of the State of Maryland, that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc. is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint Scott D. Mathers, Rhonda P. Newton, Karen M. Bracey, and Jennifer S. Beasley of the City of Raleigh ,State of North Carolina ,their true and lawful Attorney(s)-in-Fact, each in their separate capacity if more than one is named above, to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in theittbusirtess o~,guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or pcrnii~ in and ,~tions ft"tceedings allowed by law. ~. ~ , IN WITNFySS HEREOF, the Comp~rt~e~s~tave caused this insh y_ni~ nt ~~ ~ h~ ,~ nctl anal ~Itgliz"c~or~orate seals to be hereto affixed, this day of Vcto er LL 7/ ,, 12th Farmington Casualty C 'any _. ~~° St. Paul Guardian Insurance Company Fidelity and Guarantyr C'uwpa St. Paul Mercury Insurance Company Fidelity and Guaranty Insu a Underw ters, Inc. Travelers Casualty and Surety Company Seaboard Surety Company Travelers Casualty and Surety Company of America St. Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company t pASUq~~ ~ s<nerJ. Jo`F\0.E 4 ~ ~~N..iNSG aY ,.` NSyq'4.* p~'fY qN0 Y °~r * i -I J :...........9 J r yW s+wrry F1n ANQ Z„198zS o '~ 1977 N~OAFDIWirD 1927 g y~z ~f~Opv^Rq~fm PW:'OOPPORgT~ n aPHARTFORD9~ ~mn,~++ ~ ~~ i e; 1951 m it. gE 'n . ~ ~ : ~ o CaaR. a CDrWgD` e N 1896 bey ~ ~+a i t}~ ~'oFr~Ew'~ s~~~NCEO dlS.AN~~1fr 6S ~ ~,~ac 'sd ~s; ~v+ '~}~ _~(~ ....M+ r........ ~ i .+ ANA State of Connecticut City of Hartford ss. By: Georg Thompson, enior ice President 12th October 2007 On this the day of ,before me personally appeazed George W. Thompson, who acknowledged himself to be the Senior Vice President of Farmington Casualty Company, Fidelity and Guaanty Insurance Company, Fidelity and Guaanty Insurance Underwriters, Inc., Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, and that he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. C„T!'r In Witness Whereof, I hereunto set my hand and official seal. ~~ My Commission expires the 30th day of June, 2011. ~ AtIBU~ ~~ ~ an~- c . ~ Mane C. Tetreault, Notary Public 58440-5-07 Printed in U.S.A. OF ATTORNEY IS INVALID This Power of Attorney is granted undef and by the authority of the following resolutions adopted by the Boards of Directors of Farnungton Casualty Company, Fidelity and Guazanty Insurance Company, Fidelity and Guazanty Insurance Underwriters, Inc., Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guazanty Company, which resolutions aze now in full force and effect, reading as follows: RESOLVED, that the Chairman, the President, any-Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys-in-Fact and Agents to act for and on behalf of the Company and may give such appointee sucfi authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her; and it is FURTHER RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary; and it is FURTHER RESOLVED, that: any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President of any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary; or (b) duly executed (under seal, if required) by one or more Attorneys-in-Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED, that the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any power of attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys-in-Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such power of attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such. facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached. I, Kori M. Johanson, ~1e undersigned, Assistant Secretary, of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guazanty Insurance Underwriters, Inc., Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guazdian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Suret<~ ~o~itpany meric d United States Fidelity and Guazanty Company do hereby certify that the above and foregoing is a true and correct copy of the Power, o'f`~[yurney e d b ati~. mpanies, which is in full force and effect and has not been revoked. ,j IN TESTIMONY WHEREOF, I have hereunto set my hand an ~~I ~I~~t,~ al of"sYai ~'~nies this _ ~~ " ,.p 9th aay of October- , 20 08 Kori M. Johans Assistant Secretary pASUq~ SUHEfy PR 4 TN:.~MS tiNSUq Jp~tY ANp+ l~pfuRm, ~r~ ? ~ 4 Off: G9 JP """'•~~.9 a -0 * r >P ~,taRPORA~•~ QG.+• `O'4*~ pQ' ,~, ¢,J~. ~ ~1~ n ~ ORAT® t ~ I .,, t'tl`l W : GaRPNRAlfh,R t a G9 S 1982 0 ~ 1977 1927 S G e im a; ;o; wAATFOro, o~+. ,896 ? ~: S t ~~$ 1951 N~ ~ ~:SEA4/on1 'ttSBALja° ~5~, C06K F3'7~\ °urR'' !R ~' ~~ y a 9 s c ,......._. a o. ~., : a r -'y ~ p~+ n•' ~y{~N'~ `R ANCE 1S . AN'~ lr .. ~.. ~? 41 ~ ~p+ AIN w.. To verify the authenticity of this Power of Attorney, call 1-800-421-3880 or contact us at www.travelersbond.com. Please refer. to the Attorney-In-Fact number, the above-named individuals and the details of the bond to which the power is attached. THIS POWER OF DUAL TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA OBLIGEE Hartford, Connecticut 06183 RIDER This Rider is to be attached to and forms a part of Performance Bond No. 105134429 issued by Travelers Casualty and Surety Company of America, (hereinafter referred to as "Surety"), as Surety, on the 2nd day of September, 2008 (hereinafter referred to as "Bond"). WHEREAS, on or about the 2nd day of September, 2008, The Resolute Building Company (hereinafter called the "Principal"), entered into a written agreement with Telesis Construction Management, LLC (hereinafter called the "Primary Obligee") for the construction of the Orange County Office Building, 131 Margaret Lane, Hillsborough, NC 27278 (hereinafter called the "Contract"); and WHEREAS, the Principal and the Surety executed and delivered to said Primary Obligee the Bond in connection with the Contract; and WHEREAS, the Primary Obligee has requested the Principal and the Surety to execute and deliver this Rider. NOW, THEREFORE, .the undersigned hereby agree and stipulate that Orange County, PO Box 8181, Hillsborough, NC 27278 shall be added to said bond as a named obligee (hereinafter referred to as "Additional Obligee"), subject to the conditions set forth below: 1. The Surety shall not be liable under the Bond to the Primary Obligee, the Additional Obligee, or any of them, unless the Primary Obligee, the Additional Obligee, or any of them, shall make payments to the Principal (or in the case the Surety arranges for completion of the Contract, to the Surety) strictly in accordance with the terms of said Contract as to payments and shall perform all other obligations to be performed under said Contract at the time and in the manner therein set forth. 2. The aggregate liability of the Surety under the Bond, to any or all of the obligees (Primary and Additional Obligees), as their interests may appear, is limited to the penal sum of the Bond; the Additional Obligee's rights hereunder are subject to the same defenses Principal and/or Surety have against the Primary Obligee, and the total liability of the Surety shall in no event exceed the amount recoverable from the Principal by the Primary Obligee under the Contract. At the Surety's election, any payment due under the performance bond may be made by joint check payable to one or more of the obligees. 3. The Surety may, at its option, make any payments under said Performance Bond by check issued jointly to all of the obligees. Except as herein modified, the Bond shall be and remains in full force and effect. Signed this 9th day of October, 2008. The Resolute Building Company (Principal) By: Davi .Anna, 0 Z~ Telesis Construction Management, LLC (Primary Obligee) . (~ ~ ~r V Travelers Casualty d Surety Company of America By: Sco D. Mathers, Attorney-in-Fact r WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER ' ~A POWER OF ATTORNEY ' i TRAVELERS J Farmington Casualty Company St. Paul Guardian Insurance Company Fidelity and Guaranty Insurance Company St. Paul Mercury Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. Travelers Casualty and Surety Company Seaboard Surety Company Travelers Casualty and Surety Company of America St. Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company Attorney-In Fact No. 214644 Certificate No. ~ t,J ~ ~ ~J `-Y f~ ~ 1 KNOW ALL MEN BY THESE PRESENTS: That Seaboard Surety Company is a corporation duly organized under the laws of the State of New York, that St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company and St. Paul Mercury Insurance Company are corporations duly organized under the laws of the State of Minnesota, that Farmington Casualty Company, Travelers Casualty and Surety Company, and Travelers Casualty and Surety Company of America are corporations duly organized under the laws of the State of Connecticut, that United States Fidelity and Guaranty Company is a corporation duly organized under the laws of the State of Maryland, that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc. is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint Scott D. Mathers, Rhonda P. Newton, Karen M. Bracey, and Jennifer S. Beasley of the City of Raleigh ,State of North Carolina ,their true and lawful Attorney(s)-in-Fact, each in their separate capacity if more than one is named above, to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their,.k~us~iess of„guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or pei uiiifr~l i^ anW a`tions of E`trrceedings allowed by law. ~- IN WITNESS WHEREOF, the Companies have caused this instrtnt-i~, h~ >i3nrd ~n~l Ihwic ~,~~~pvrate seals to be hereto affixed, this da of October 2007 ~.. , Y ' a3 Farmington Casualty Cq ut Fidelity and Guaranty~ss ra Cutitpan} v - Fidelity and Guaranty Insu e`[Jnderwriters, Inc. Seaboard Surety Company St. Paul Fire and Marine Insurance Company 12th St. Paul Guardian Insurance Company St. Paul Mercury Insurance Company Travelers Casualty and Surety Company Travelers Casualty and Surety Company of America United States Fidelity and Guaranty Company X72 o~suA~r` ~ 51WEty~ oyE..a ~ m~ o`*N-yN,t`G9 ~Jp+'~ ~N'Sy~ JP tY ANp m` ~r„^s~ntry ~y~EUT1'M'0 o °PP~gr r' ~°y It a< 'Iy Q•~ .,1 J'4 :: .. 4`q e y w ~' #' !o n rCOp P°R~Tf;•.s tp: ~. (,. m 9 i '~ 4I ~,19~82~ 0 ~PORATED z ~t m Wr°ORPORATf`-,~~ i ~y"'~cK'-a"; 1977 ~ 1927 K ~ ~ r t ;~! ~ -- .o; W wurFOao, atwtarwrm.i~. < tR 1951 m ~'• S E A L o, ~ I couK ~~ Down. 1£ NO,~p<~ e r ~y . ti~ d ~~ `n,OFrhW~ '4.a,~,„mm~ lN:...t'N..''r s...T..•*a ddi 'gas a vaNi~ ~ AN1 State of Connecticut City of Hartford ss. By: Georg Thompson, enior ice President On this the 12th da of October 2007 Y ,before me personally appeared George W. Thompson, who acknowledged himself to be the Senior Vice President of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, .Inc., Seaboazd Surety Compatty, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company; Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, and that he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. ~„TEr In Witness Whereof, I hereunto set my hand and official seal. ~ ~~ My Commission expires the 30th day of June, 2011. ~ BUGS Marie C. Tetreault, Notary Public 58440-5-07 Printed in U.S.A. WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER This Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guazdian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, which resolutions are now in full force and effect, reading as follows: RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys-in-Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her; and it is FURTHER RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary; and it is FURTHER RESOLVED, that any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary; or (b) duly executed (under seal, if required) by one or more Attorneys-in-Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED, that the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any'Assistant Secretary, and the seal of the Company may be affixed by facsimile to any power of attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attomeys-in-Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such power of attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached. I, Kori M. Johanson, the undersigned, Assistant Secretary, of Farmington Casualty Company, Fidelity and Guazanty Insurance Company, Fidelity and Guazanty Insurance Underwriters, Inc., Seaboazd Surety Company, St. Paul Fire and Marine Insurance, Co~npanya St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Sure{~~>tlipany~4mericaet~d United States Fidelity and Guazanty Company do hereby certify that the above and foregoing is a true and correct copy of the Power ,,,f'~ttorne~~ ese~ut b. Asa companies, which is in full force and effect and has not been revoked. ~- ,~;, A ~ _. y,F IN TESTIMONY WHEREOF, I have hereunto set my hand an th of lut Criritg~nies this 9th day of October , 20 ~g • <~.~ ~ , ~ x tem. r Kori M. Johans Assistant Secretary °I.SUAI q SWafTy JYF\RE y ~ O1~"M I NSG9 Jp•I.IN3Ugq ,4 e,"ATV ANp'` ~ ~Y~ O t y • .. - P r`OR PORA)F• ?. µPONAl ~°t^'~ 6P 9t a ~~` z ~I ~ W rtC f`. p~'~ ~ e't98x~ o ~ 1977' NIbRPOPoRED 9192T ~ ^ ~; z; _- :mil W NMTFRN, oars. R N teas z ~; n ~t o CONN. ~,,p Os; 1951 ,~ ,.sent, o~ ~:,SSAL'a ~+ r d~' ..... . ~y • "~+ ~ ~ n.'pF~ry~ '~,~;NCE 1s . A~ 1s....• ~a st ~N ANA .... To verify the authenticity of this Power of Attorney, call 1-800-421-3880 or contact us at www.travelersbond.com. Please refer to the Attorney-In-Fact number, the above-named individuals and the details of the bond to which the power is attached. NG: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER Client#• 126284 RESOBUI ACORD CERTIFICATE OF LIABILITY INSURANCE ~ ~' TM ioniz0o s PRgDUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Wachovia Insurance Serv-RA, NC ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE PCJ Box 97787 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Ral~iigh, NC 27624-7787 8 22-4154 INSURERS AFFORDING COVERAGE NAIC e INSURED INSURER A: Westfield National Insurance Company 24120 Resolute Building Company INSURER B: Westfield Insurance Company 24112 PO Box 3656 INSURER C: Chapel Hiil, NC 27515 INSURER D: INSURER E: covERaf;Es THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE iNSUREO NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. I R TYPE OF INSURANCE pOLK.W NUMBER POLICYM FFECTNE POLICY EXPIRATION LIMITS A GENERAL UABILm TRA4527240 10/01/08 1 O/01109 EACH OCCURRENCE Si OOO OOO X COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED ISES ~.a a~~~~~~ s3oo 000 CLAIMS MADE ~ OCCUR MED EXP (Any one person) S1 O OOO PERSONAL & ADV INJURY S1 (}OO OOO GENERAL AGGREGATE S2 OOO OOO X GEN'L AGGREGATE UM17 APPLIES PER: PRODUCTS - COMP/OP AGG S2 OOO OOO POLICY X PRO- LOC A wuTOMOBILE Lu+.eltrrr X ANY AUTO TRA4527240 10/01/08 10/01109 COMBINED SINGLE LIMIT (Ea aeddenq :1,000,000 ALL OWNED AUTOS BODILY INJURY SCHEDULED AUTOS (Per person) S X HIREO AUTOS BODI Y INJU Y X NON-0WNEDAUTOS L R {Peraeddenq S X 5250 Comp Ded X X500 Cotl Ded (Per ~eMOAMAGE i GARAGE LUU3NJTY AU70 ONLY • EA ACCIDENT S ANY AUTO FA ACC OTHER THAN = AUTO ONLY: AGG S A EXCESSIUMBRELLA LIABILITY TRA4527240 10/01/08 10!01109 EACH OCCURRENCE s10 000 000 X OCCUR ~ CLAIMS MADE AGGREGATE S1 O OOO OOO a DEDUCTIBLE i X RETENTION S O s B WORKERS COMPENSATION AND WCP4527399 10/01/08 10/01/09 X WC sTATU- oTH- EMPLOYERS LIABiL[IY ANY PROPRIETOR/PARTNERIEXECUTNE E.L. EACH ACCIDENT S1 OO,000 N OFFICER/MEMBER EXCLUDED? E.L. DISEASE - EA EMPLOYEE S7 OO OOO hyes descr~e user SPECUtL PROVISIONS bebw E.L. DISEASE -POLICY LIMff SSOO OOO OTHER DESCRIPTION OF OPERATIONS! LOCATIONS 1 VEHICLES! EXCLUSIONS ADDED BY ENDORSEMENT I SPECIAL PROVISIONS Re: Orange County Office Building 131 Margaret Lana Hillsborough, NG 27278 Telesis Constructiong Management, LLC, Brockwell and Associates, EDi, Inc. Gardner 8 McDaniel, PA, Summit Consulting and Orange County are named as (See Attached Descriptions} Telesis Construction Management, LLC 1000 Corporate Drive, Suite 109 Hillsborough, NC 27278 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION GATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL _~_ OAYS WRITTEN NOTICE TO THE CERTIFK:ATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF AMY KIND UPON THE INSURER, R3 AGENTS OR AUTHORIZED REPRESENTA~TIVyE ~ ~ ~/ i ~aa.vrcu <~ (~uu-I1uts) ~ of 3 iF51409388/M1405195 LHA02 O ACORD CORPORATION 1988 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy{ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement{s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCi.AIMER The Cerfificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer{s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25S (2007/08} 2 of 3 tlS1409388lM1405195 DESCRiPTlONS Continued #rolm Page 1) 1 additional insureds with respect to General Liability and Automobile Liablilty. The Umbrella follows form. A waiver of subrogation applies 1n favor of Telesis Construction Management, LLC, Brockwell and Associates, E 7c. Gardener ~ McDanlei, PA, and Summit Consulting for general liability, automobile liability, and workers compensation. AMS 25.3 (2001!08) 3 of 3 #574093SSlM7405795 • " /' Clinn4df• ~9R94A _ _____ __-_ r~c.avov~ ACORDTM CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DD/YYY1~ osrlsros PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Wachovia Insurance Services ONLYAND CONFERS NO RIGHTS UPON THE CERTIFICATE PO Box 97787 R l i h NC 27624 778 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. a e g , - 7. P:919-676-8834 F:919-676-3307 INSURERS AFFORDING COVERAGE NAIC # INSURED Resolut B ildi C INSURER A: AmerlSUr@ COmpanieS 19488 e u ng ompany PO Box 3656 INSURER e: Amerisure Mutual Insurance Company Cha el Hili NC 27515 INSURER c: Amerisure Insurance Company p , INSURER D: INSURER E: THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. I TR DD' SR TYPE OF INSURANCE POLICY NUMBER PDOLICY EFFECTIVE POLICY EXPI p TION LIMITS A GENERALLIABIUTY CPP2013875050007 10rO1r07 10r01r08 EACH OCCURRENCE 51 OOO OOO X COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED $30O OOO CIAIMS MADE a OCCUR MED EXP (Any one person) $10 000 PERSONAL 8 ADV INJURY 1 OO GENERAL AGGREGAT $ O OOO 2 O E $ OO 000 X GEN'L AGGREGATE LIMIT APPLIES PER: O PRODUCTS -COMP/OP AGG $2 OOO O00 POLICY X jE LOC C AU X TOMOBILE LIABILITY ANY AUTO CA2013873050007 10/01/07 1 Or01r08 COMBINED SINGLE LIMIT (Ea accident) $1,000,000 ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY (Per person) $ X HIRED AUTOS X NON-0WNEDAUTOS BODILY INJURY (Peracddent) $ X $250 Comp Ded X $500 Coll Ded PROPERTY DAMAGE (Pe.acddent) $ GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ ANY AUTO OTHER THAN ~ ACC $ AUTO ONLY: AGG $ B EXCESSNMBRELLA LIABILITY CU2013877 10/01/07 10/01!08 EACH OCCURRENCE $10 000 OOO X OCCUR ~ CLAIMS MADE AGGREGATE $10 OOO QOO $ DEDUCTIBLE X RETENTION $ 0 $ B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY WC201388105 10/01/07 10r01r08 X WC STATU- OTH- ANY PROPRIETOR/PARTNER/EXECUTIVE E.L. EACH ACCIDENT $1 OO OOO N OFFICER/MEMBER EXCLUDED? ff yes, describe under E.L. DISEASE - EA EMPLOYEE $1 OO,000 SPECIAL PROVISIONS below E.L. DISEASE -POLICY LIMIT $500,000 OTHER DESCRIPTION OF OPERATIONS /LOCATIONS /VEHICLES !EXCLUSIONS ADDED BY ENDORSEMENT /SPECIAL PROVISIONS Re: Orange County Office Building 131 Margaret Lane Hillsborough, NC 27278. Telesis Constructiong Management, LLC, Brockwell and Associates, EDi, Inc. Gardner 8~ McDaniel, PA and Summit Consulting are named as additional insureds with respect to General Liability, Automobile Liability, and Umbrella Liability for ongoing and completed (See Attached Descriptions) Telesis Construction Management, LLC 1000 Corporate Drive, Suite 109 Hillsborough, NC 27278 nrnon •fe e•fnn~in e~ . SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL ~~ DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR ~___.._ _..,_,,,,..,,,,, , yr o ~~ IsaaaT nm-IZDSUIU LHA02 ©ACORD CORPORATION 1988 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION fS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate. holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ernon~a_er~nn~mo~ .. .,. .._.____._.__.______ -- - ~--- ••--, c yr o ~~ r saaa i nm7zosu /U AMS 25.3 (2001/08) 3 of 3 #513889171M1263070 THE AMERICAN INSTITUTE OF ARCHITECTS ,\ ; ~; ~sona NO.lUb1344SU AIA Document A312 Performance Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. wrv I KHC: I vK (Name and Address): The Resolute Building Company 211 Cloister Ct. Chapel Hill, NC 27514 OWNER/OBLIGEE(Name and Address): Telesis Construction Management, LLC 1000 Corporate Drive, Suite 109 Hillsborough, NC 27278 SURETY (Name and Principal Place of Business): Travelers Casualty and Surety Company of America Construction Services One Tower Square Hartford, CT 06183 CONSTRUCTION CONTRACT Date: September 2, 2008 Amount: Two Million. Eight Hundred Six Thousand Ten and 00/100 Dollars ($2,806,010.00) Description (Name and Location): Orange County Library, 137 Margaret Lane, Hillsborough, NC 27278. BOND Date (Not earlier than Construction Contract Date): September 2, 2008 Amount: Two Million Eight Hundred Six Thousand Ten and 00/100 Dollars ($2,806,010.00) Modifications to this Bond: OWLDhyG, CONTRACTOR AS PRINCIPAL J'~~pQ`p~~/~. C Company: (~ r~cBE>~e ~ ~ The Resolute Building Company ~ ~ b ~- NC Signature: _ Name and (Any additional signatures appear on page 3) ~ None SURETY ^ See F'age 3 Company: (Corporate Seal) Travelers Casualty and Surety Company of America Signature: Name and Title: Scott D. Mathers, Attorney-irl-Fact '~ ~-/v~ (FOR INFORMATION ONLY -Name, Address and Telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer (919) 676-8834 or other party): Wachovia Insurance Services Brockwell Associates, Inc. P.O. Box 97787 1911 Hillandale Road, Suite 1050 Raleigh, NC 27624-7787 Durham, NC 27705 AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND .DECEMBER 1984 ED. •AIA THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 THIRD PRINTING • MARCH 1987 A312-1984 1 The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner for the performance of the Construction Contract, which is incorporated herein by reference. 2 If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond, except to participate in conferences as provided in Subparagraph 3.1. 3 If there is no Owner Default, the Surety's obligation under this Bond shall arise after: 3.1 The Owner has notified the Contractor and the Surety at its address described in Paragraph 10 below that the Owner is considering declaring a Contractor Default and has requested and attempted to arrange a conference with the Contractor and the Surety to be held not later than fifteen days after receipt of such notice to discuss methods of performing the Construction Contract. If the Owner, the Contractor and the Surety agree, the Contractor shall be allowed a reasonable time to perform the Construction Contract, but such an agreement shall not waive the Owner's right, if any, subsequently to declare a Contractor Default; and 3.2 The Owner has declared a Contractor Default and formally terminated the Contractor's right to complete the contract. Such Contractor Default shall not be declared earlier than twenty days after the Contractor and the Surety have received notice as provided in Subparagraph 3.1; and 3.3 The Owner has agreed to pay the Balance of the Contract Price to the Surety in accordance with the terms of the Construction Contract or to a contractor selected to perform the Construction Contract in accordance with the terms of the contract with the 3.4 Owner. 4 When the Owner has satisfied the conditions of Paragraph 3, the Surety shall promptly and at the Surety's expense take one of the following actions: 4.1 Arrange for the Contractor, with consent of the Owner, to perform and complete the Construction Contract; or 4.2 Undertake to perform and complete the Construction Contract itself, through its agents or through independent contractors; or 4.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Construction Contract, arrange for a contract to be prepared for execution by the Owner and the contractor selected with the Owner's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the .bonds issued on the Construction Contract, and pay to the Owner the amount of damages as described in Paragraph 6 in excess of the Balance of the Contract Price incurred by the Owner resulting from the Contractor's default; or 4.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances: .1 After investigation, determine the amount for which it may be liable to the Owner and, as soon as practicable after the amount is determined, tender payment therefor to the Owner; or .2 Deny liability in whole or in part and notify the Owner citing reasons therefor. 5 If the Surety does not proceed as provided in Paragraph 4 with reasonable promptness, the Surety shall be deemed to be in default on this Bond fifteen days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations under this Bond, and the Owner shall be entitled to enforce any remedy available to the Owner. If the surety proceeds as provided in Subparagraph 4.4, and the Owner refuses the payment tendered or the Surety has denied liability, in whole or in part, without further notice the Owner shall be entitled to enforce any remedy available to the Owner: 6 After the Owner has terminated the Contractor's right to complete the Construction Contract, and if the Surety elects to act under Subparagraph 4.1, 4.2, or ~4.3 above, then the responsibilities of the Surety to the Owner shall not be greater than those of the Contractor under the Construction Contract, and the responsibiliti~ss of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. To the limit of the amount of this Bond, but subject to commitm~snt by the Owner of the Balance of the Contract Price to mitigation of costs and damages on the Construction Contract, the Surety is obligated without duplication for: 6.1 The responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; 6.2 Additional legal, design professional and delay costs resulting from the Contractol's Default, and resulting from the actions or failure to act of the Surety under Paragraph 4; and 6.3 Liquidated damages, or if not liquidated damages are specified in the Construction Contract, actual damages caused by delayed performance or non- pertormance of the Contractor. 7 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Construction Contract, and the Balance of the: Contract Price shall not be reduced or set off on account of any such unrelated obligations. No right of action shall accrue on this Bond to any person or entity other than the Owner or its heirs, executors, administrators or successors. 8 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders :and other obligations. 9 Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and shall be instituted within two years after Contractor Default or within two years after the Contractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond, whichever occurs first. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit. shall be applicable AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312-1984 2 10 Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. 11 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond. 12 DEFINITIONS 12.1 Balance of the Contract Price: The total amount payable by the Owner to the Contractor under the Construction Contract after all proper adjustments have been made, including allowance to the Contractor of any amounts received or to be received by the Owner in MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: settlement of insurance or other claims for damages to which the Contractor its entitled, reduced by all valid and proper payments made to or on behalf of the Contractor under the Construction Contract. 12.2 Construction Contract: The agreement between the Owner and the Contractor identified on the signature page, including all Contract Documents and changes thereto. 12.3 Contractor Default: Failure of the Contractor, which has neither been remedied nor waived, to perform or othenrvise to comply with the teams of the Construction Contract. 12.4 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof. (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate ~5eal) Signature: Name and Title: Address: Signature: Name and Title: Address: AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312-1984 3 THIRD PRINTING .MARCH 1987 THE AMERICAN INSTITUTE OF ARCHITECTS ~i~ A/A Document A311 Labor and Material Payment Bond THIS BOND IS ISSUED SIMULTANEOUSLY WITH PERFORMANCE BOND IN FABOR OF THE OWNER CONDITIONED ON THE FULL AND FAITHFUL PERFORMANCE OF THE CONTRACT Bond #105134430 KNOW ALL MEN BY THESE PRESENTS: that The Resolute Building Company 211 Cloister Ct. Chapel Hill, NC 27514 (Here insert full name and address or legal title of Contractor) as Principal, hereinafter called Principal, and, Travelers Casualty and Surety Company of America Construction Services One Tower Square, Hartford, CT 06183 (Here insert full name and address or legal title of Surety) as Surety, hereinafter called Surety, are held and firmly bound unto Telesis Construction Management, LLC 1000 Corporate Drive, Suite 109 Hillsborough, NC 27278 (Here insert full name and address or legal title of Owner) as Obligee, hereinafter called Owner, for the use and benefit of claimants as hereinbelow defined, in the amount Of Two Million Eight Hundred Six Thousand Ten and 00/100 Dollars ($2,806,010.00) (Here insert a s:um equal to at least one-half of the contract price) for the payment whereof Principal and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, Principal has by written agreement dated September 2, 2008, entered into a contract with Owner for (Here insert full name, address and description of project) Orange County Library, 137 Margaret Lane, Hillsborough, NC 27278 in accordance with Drawings and Specifications prepared by Brockwell Associates, Inc. 1911 Hillandale Road, Suite 1050, Durham, NC 27705 (Here insert full name and address or legal title of Architect) which contract is by referenced made a part hereof, and is hereinafter referred to as the Contract. AIA DOCUMENT A311 . PERFORMANCE BOND AND LABOR AND MATERIAL PAYMENT BOND . AIA FEBRUARY 1970 ED.. THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 $ LABOR AND MATERfAL PAYMENT BOND NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if Principal shall promptly make payment to all claimants as hereinafter defined, for alf labor and material used or reasonably required for use in the performance of the Contract, then this obligation shall be void; otherwise it shall remain in full force and effect, subject, however, to the fol- lowing conditions: 1. A claimant is defined as one having a direct con- tract with the Principal or with a Subcontractor of the Principal for labor, material, or both, used or reasonably required for use in the performance of the Contract, labor and material being construed to include that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental or equipment directly applicable to the Contract. 2. The above named Principal and Surety hereby jointly and severally -agree with the Owner that every claimant as herein defined, who has not been paid in full before the expiration of a period of ninety (90) days after the date on which the last of such claimant's work or labor was done or performed, or materials were furnished by such claimant, may sue on this bond for the use of such claimant, prosecute the suit to final judgement for such sum or sums as may be justly due claimant, and have execution thereon. The Owner shall not be liable for the payment of any costs or expenses of any such suit. 3. No suit or action shall be commenced hereunder by any claimant: a) Unless claimant, other than one having a direct contract with the Principal, shall have given written notice to any two of the following: the Principal, the Owner or the Surety above named, within ninety (90) days after such claimant did or performed the last of the work or labor, or furnished the last of the materials for which said claim is made, stating with substantial Signed and sealed this 2"d day of September, 2008. G C (Witness) accuracy the amount claimed and the name of the party to whom the materials were furnished, or for whom the work or labor was done or performed. Such notice shall be served by mailing the same by registered mail or certified mail, postage prepaid, in an envelope ad- dressed to the Principal, Owner or Surety, at zany place where an office is regularly maintained for the trans•- action of business, or served in any manner in which legal process may be served in the state in which the aforesaid project is located, save that such service need not be made by a public officer. b) After the expiration of one (1) year following the date on which Principal ceased Work on said Contract, it being understood, however, that if any limitation em- bodied in this bond is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law. c) Other than in a state court of competent jurisdiction in and for the county or other political subdivision of the state in which the Project, or any part thereof, is situated, or in the United States District Court for they district in which the Project, or any part thereof, is sii:- uated, and not elsewhere. 4. The amount of this bond shall be reduced by ;and to the extent of any payment or payments made in good faith hereunder, inclusive of the payment by :surety of mechanics' liens which may be filed of record against said improvement, whether or not claim for the amount of such lien be presented under and against this bond. (w s > Jenn' r S. Beasley AIA DOCUMENT A311 • PERFORMANCE BOND AND LABOR AND MATERIAL PAYMENT BOND • AIA FEBRUARY 1970 ED. • THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D. C. 20006 4 Travelers Casua{ and Sure Com an of Arnerica (Surety) (Seal) Scott D. Mathers, Attorney-ln-Fact (Tine) WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER ~A. POWER OF ATTORNEY TRAVELERS .1 Farmington Casualty Company St. Paul Guardian Insurance Company Fidelity and Guaranty Insurance Company St. Paul Mercury Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. Travelers Casualty and Surety Company Seaboard Surety Company Travelers Casualty and Surety Company of America St. Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company Attorney-In Fact No. 214644 Certificate No. O ~ ~ ~ ~ ~ v ~ ~+ KNOW ALL MEN BY THESE PRESENTS: That Seaboard Surety Company is a corporation duly organized under the laws of the State of New York, that St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company and St. Paul Mercury Insurance Company are corporations duly organized under the laws of the State of Minnesota, that Fazmington Casualty Company, Travelers Casualty and Surety Company, and Travelers Casualty and Surety Company of America are corporations duly organized under the laws of the State of Connecticut, that United States Fidelity and Guaranty Company is a corporation duly organized under the laws of the State of Maryland, that Fidelity and Guazanty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc. is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint Scott D. Mathers, Rhonda P. Newton, Karen M. Bracey, and Jennifer S. Beasley of the City of __ Ralel;;h ,State of North Carolina ,their true and lawful Attorney(s)-in-Fact, each in their separate capacity if more than one is named above, to sign, execute, seal and acknowledge any and all bonds, recognizances, conditiont~l undertakings and other writings obligatory in the nature thereof on behalf of the Companies in them-business ofguaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guazanteeing bonds and undertakings required or p?rrri)tr.c~in ariot~s aiceedings allowed by law. t~ 4~_ s. IN WITNF~Ct~HEREOF, the Comp~e,~s~ave caused this inst~ ~nr r„ be ne'ditd lhih,~~ ~rporate seals to be hereto affixed, this day of vy UU .~- `~t fir; Farmington Casualty Ce °`~y Fidelity and Guaranty~'itsr, c~(thpa ,, Fidelity and Guaranty Insu ' e Underw ers, Inc. Seaboard Surety Company St. Paul Fire and Marine Insurance Company 'I 2th St. Paul Guardian Insurance Company St. Paul Mercury Insurance Company Travelers Casualty and Surety Company Travelers Casualty and Surety Company of America United States Fidelity and Guaranty Comipany 2 GI.SUA<1 4,1>Rfty ' F,FE64 ~~N..~N'rG Pj ~MSUN a~Tr ANO /^~. p Y * 7 J:............ i C ~ ~~~`~~ ~ ~ ~ r~'tl1 ~C00.P0 -~ ~~ w. fy } 4 J G 3~~~ ~~~~ ~C~ G f1 y4 IIC~IPoRAtrD i ~ f R,~f m : W 2CAaPORAfE,:.,r~ i ~ t v a z o 1977 7 927 g ~ t ; F: ~ t w wwrFOno, twst~aRO. ~ s~•~sa ~ ~' 1951 m„ ~~~.SEAL'o": ~~':SSAL%s°~ cONN. ~ Cotx+. 2 ;r, 1896 ~ ~ d ~......., f ~' e $ a„ .r . ~ ~ ~ `~OFrypN~ ~u,~~„~oE ls.. ~~ ~s'°.._ ~,e` 61 ~„+ AMt State of Connecticut City of Hartford ss. By: Georg Thompson, enior ice President 12th October 2007 On this the day of ,before me personally appeazed George W. Thompson, who acknowledged himself to be the Senior Vice President of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance 1nderwriters, Inc., Seaboard Surety Company, St. Paul Fire and Mazine Insurance Company, St. Paul Guadian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, and that he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. ~G.T~~ In Witness Whereof, I hereunto set my hand and official seal. ~ My Commrssron expires the 30th day of June, 2011. ~ p~`~G$ `(,(~ C~tn~t.~- C . ~.,~. Marie C. Tetreault, Notary Public 58440-5-07 Printed in U.S.A. DUAL TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA OBLIGEE Hartford, Connecticut 06183 RIDER This Rider is to be attached to and forms a part of Performance Bond No. 105134430 issued by Travelers Casualty and Surety Company of America, (hereinafter referred to as "Surety"), as Surety, on the 2nd day of September, 2008 (hereinafter referred to as "Bond"). WHEREAS, on or about the 2nd day of September, 2008, The Resolute Building Company (hereinafi:er called the "Principal"), entered into a written agreement with Telesis Construction Management, LLC (hereinafter called the "Primary Obligee") for the construction of the Orange County Library, 137 Margaret Lane, Hillsborough, NC 27278 (hereinafter called the "Contract"); and WHEREAS, the Principal and the Surety executed and delivered to said Primary Obligee the Bond in connection with the Contract; and WHEREAS, the Primary Obligee has requested the Principal and the Surety to execute and deliver this Rider. NOW, THEREFORE, the undersigned hereby agree and stipulate that Orange County, PO Box 8181, Hillsborough, NC 27278 shall be added to said bond as a named obligee (hereinafter referred to as "Additional Obligee"), subject to the conditions set forth below: 1. The Surety shall not be liable under the Bond to the Primary Obligee, the Additional Obligee, or any of them, unless the Primary Obligee, the Additional Obligee, or any of them, shall make payments to the Principal (or in the case the Surety arranges for completion of the Contract, to the Surety) strictly in accordance with the terms of said Contract as to payments and shall perform all other obligations to be performed under said Contract at the time and in the manner therein set forth. 2. The aggregate liability of the Surety under the Bond, to any or all of the obligees (Prirnary and Additional Obligees), as their interests may appear, is limited to the penal sum of the Bond; the Additional Obligee's rights hereunder are subject to the same defenses Principal and/or Surety have against thE: Primary Obligee, and the total liability of the Surety shall in no event exceed the amount recoverable from the Principal by the Primary Obligee under the Contract. At the Surety's election, any payment due under the performance bond may be made by joint check payable to one or more of the obligees. 3. The Surety may, at its option, make any payments under said Performance Bond by check issued jointly to all of the obligees. Except as herein modified, the Bond shall be and remains in full force and effect. Signed this 9th day of October, 2008. The Resolute Building Company (Principal) By: David F. Anna, CEO , Telesis Construction Management, LLC (Primary Obligee) B ~ G ~~- Travelers Casua and Surety Company of America Scott D. Mathers, Attorney-in-Fact ~ WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER ' .IA. POWER OF ATTORNEY TRAVELERS ~ Farmington Casualty Company St. Paul Guardian Insurance Company Fidelity and Guaranty Insurance Company St. Paul Mercury Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. Travelers Casualty and Surety Company Seaboard Surety Company Travelers Casualty and Surety Company of America St. Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Cornpany Attorney-In Fact No. 214644 Certificate No. ®~ KNOW ALL MEN BY THESE PRESENTS: That Seaboard Surety Company is a corporation duly organized under the laws of the State of New York, that St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company and St. Paul Mercury Insurance Company are corporations duly organized under the laws of the State of Minnesota, that Farmington Casualty Company, Travelers Casualty and Surety Cornpany, and Travelers Casualty and Surety Company of America are corporations duly organized under the laws of the State of Connecticut, that United States Fidelity and Guaranty Company is a corporation duly organized under the laws of the State of Maryland, that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc. is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint Scott D. Mathers, Rhonda P. Newton, Karen M. Bracey, and Jennifer S. Beasley of the City of Raleigh ,State of North Carolina ,their true and lawful Attorney(s)-in-Fact, each in their separate capacity if more than one is named above, to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in theiar.business ofguaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or pe~naItte~'in att~tons A 4ai~ceedings allowed by law. `~. ~,„ IN WITNF„SS WIIEREOF, the Comp~rr~e0s~ ave caused this instru+ti'~ ht ~~ hr -,i~ ncd anal ll~~ ir,`cpr~orate seals to be hereto affixed, this VCtO er L day of ~'~,~ Farmington Casualty Corli~:u:~ -~ Fidelity and Guaranty+hsurancc C'urirpan~~ „r Fidelity and Guaranty Insur`su>~e Underwriters, Inc. Seaboard Surety Company St. Paul Fire and Marine Insurance Company 12th St. Paul Guardian Insurance Company St. Paul Mercury Insurance Company Travelers Casualty and Surety Company Travelers Casualty and Surety Company of America United States Fidelity and Guaranty Cornpany GI.SU,1~~ ~ SUNETy FIRE 6~ ~TN.~.'~Slj ''.t INSUN P~tY ANO Y V ~,.yy ~ J y ~ . ~......., y JP :........:9 gJ S ~,MD ~pE.~ E~ 'WO FO 50Q'P~ftG E1 ~ ` ~ 6 .'.r,^v,nV11rD ~ ~ 4r .. 'Z I OP PORA)t-gym F 4•ipPPOR~ T ~ G~ a ~' ~~ C i 1 9 8 2 0 '~ 1J77 ~ 7 9 g - J ; a t° -.- f~ ~~ Qu HMTFORD. t ~ HM1FrtF6rO, '3 < . ~ Ji t~is of m CONN. ~ WNH. R m 1896 ~ ~~c+w- >; 1951 alO ~,® ~.SEAL,ioi ~ SEAL:: ~, o" .,f ~' ~ Y ~ P ~ T" OF `N'~ ~FANCE d1....... ~L- d. -... ..:'aw 'rb ~e O O NfN „~ s . 1N~/ 1s ...~ r < P+ ~!'! Att1~ State of Connecticut City of Hartford ss. BY~ --~_ Georg Thompson, enior ice President On this the 12th day of October 2007 fore me personally appeared George W. Thompson, who acknowledged himself to be the Senior Vice President of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance t:Jnderwriters, Inc., Seaboard Surety Company, St. Paul Fire and Mazine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance (;ompany, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, and that. he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. ~,,TET In Witness Whereof, I hereunto set my hand and official seal. ~ *fl~ My Commission expires the 30th day of June, 2011. ~ Af/BUGS* c~- C . ~,;r~ru~~ Marie C. Tetreault, Notary Public 58440-5-07 Printed in U.S.A. ATTORNEY This Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, which resolutions are now in full force and effect, reading as follows: RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys-in-Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her; and it is FURTHER RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part.of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary; and it is FURTHER RESOLVED, that any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, •any Secohd Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested an~i sealed with the Company's seal by a Secretary or Assistant Secretary; or (b) duly executed (under seal, if required) by one or more Attorneys-in-Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED, that the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any power of attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident. Assistant Secretaries or Attorneys-in-Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such power of attorney or certificate beazing such facsimile signature or facsimile seal shall be valid and binding upon the Company, and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached. I, Kori M. Johanson, the undersigned, Assistant Secretary, of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., Seaboard Surety Company, St. Paul Fire and Marine Insurance Company St. Paul Guazdian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surer, <p~rliparr': o; ,\merica. and United States Fidelity and Guazanty Cornpany do hereby certify that the above and foregoing is a true and correct copy of the Power <~f :1rtoiite~, eater ut~d b~: -ai rl Companies, which is in full force and effect and has not been revoked. IN TESTIMONY WHEREOF, I have hereunto set my hand an ~ ~'1 the eSL= ~>f">.n,l ~ nptpdnies this "~ ~°~ _. '" 9th day of October , 20 08. Kori M. Johans Assistant Secretary GI,SUq~ .ill~Ely JV F\FE 6 O\~r IN'r`B Jp~-~NSUg4 eJ't[V qNp 86 ~,F~~ry' ~~ ~~ O~ON~~, L ~. 7~' r ~ <COItPORA~~7 Q~~ NPORA Cj„i 0 9t X19 8 2~' p ~BCRAi~ - ~. i w: ~A µ r``"! a FN4YtFOR0. Z r ~ 1951 N 1927 z ,seAt.ie ~`•SSAL:': „ ~~. ; oaW j}+t '~(\~~ess/) qq,, ~~ ~~sn O ~y.`''~c~'~ a ~, * ,~ of ~~ ~ `„ a'! 4 ' ° ° aF ~ ~ qp ~~ y ~ A, ~ ' OFNE~ VtANGEG ~!S•~AN ~';(r~.......~~.- Lbl '~ Altt N,n To verify the authenticity of this Power of Attorney, call 1-800-421-3880 or contact us at www.travelersbond.com. Please refer to the Attorney-In-Fact number, the above-named individuals and the details of the bond to which the power is attached. WARNING:7H1S POWER OF ATTORNEY THE RED DUAL TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA OBLIGEE Hartford, Connecticut 06183 RIDER This Rider is to be attached to and forms a part of Performance Bond No. 105134430 issued by Travelers Casualty and Surety Company of America, (hereinafter referred to as "Surety"), as Surety, on the 2nd day of September, 2008 (hereinafter referred to as "Bond"). WHEREAS,. on or about the 2nd day of September, 2008, The Resolute Building Company (hereinafter called the "Principal"), entered into a written agreement with Telesis Construction Management, LLC (hereinafi:er called the "Primary Obligee") for the construction of the Orange County Library, 137 Margaret Lane, Hillsborough, NC 27278 (hereinafter called the "Contract"); and WHEREAS, the Principal and the Surety executed and delivered to said Primary Obligee the Bond in connection with the Contract; and WHEREAS, the Primary Obligee has requested the Principal and the Surety to execute and deliver this Rider. NOW, THEREFORE, the undersigned hereby agree and stipulate that Orange .County, PO Box 8181, Hillsborough, NC 27278 shall be added to said bond as a named obligee (hereinafter referred to as "Additional Obligee"), subject to the conditions set forth below: 1. The Surety shall not be liable under the Bond to the Primary Obligee, the Additional Obligee, or any of them, unless the Primary Obligee, the Additional Obligee, or any of them, shall make payments to the Principal (or in the case the Surety arranges for completion of the Contract, to the Surety) strictly in accordance with the terms of said Contract as to payments and shall perform all other obligations to be performed under said Contract at the time and in the manner therein set forth. 2. The aggregate liability of the Surety under the Bond, to any or all of the obligees (Prirnary and Additional Obligees), as their interests may appear, is limited to the penal sum of the Bond; the Additional Obligee's rights hereunder are subject to the same defenses Principal and/or Surety have against they Primary Obligee, and the total liability of the Surety shall in no event exceed the amount recoverable from the Principal by the Primary Obligee under the Contract. At the Surety's election, any payment due under the performance bond may be made by joint check payable to one or more of the obligees. 3. The Surety may, at its option, make any payments .under said Performance Bond by check issued jointly to all of the obligees. Except as herein modified, the Bond shall be and remains in full force and effect. Signed this 9th day of October, 2008. The Resolute Building Company (Principal) By: Davy .Anna, , Telesis Construction Management, LLC (Primary Obligee) Travelers Casualty and rety Company of America -- Scott D. Mothers, Attorney-i -act vvHnrvwtu: r rtrs rVwtH yr AI I UHNEY IS INVALID WITHOUT THE RED BORDER .A. POWER OF ATTORNEY TRAVELERS ~ Farmington Casualty Company St. Paut Guardian Insurance Company Fidelity and Guaranty Insurance Company St. Paul Mercury Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. Travelers Casualty and Surety Company Seaboard Surety Company Travelers Casualty and Surety Company of America St. Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company Attorney-In Fact No. 214644 Certificate No. ~ €.J' ~ °~l' mJ ~ 6>a' KNOW ALL MEN BY THESE PRESENTS: That Seaboard Surety Company is a corporation duly organized under the laws of the State of New York, that St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company and St. Paul Mercury Insurance Company are corporations duty organized under the laws of the State of Minnesota, that Farmington Casualty Company, Travelers Casualty and Surety Company, and Travelers Casualty and Surety Company of America are corporations duly organized under the laws of the State of Connecticut, that United States Fidelity and Guaranty Company is a corporation duly organized under the laws of the State of Maryland, that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc. is a corporation duly organized under the laws of the State of Wisconsin'(herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint Scott D. Mathers, Rhonda P. Newton, Karen M. Bracey, and Jennifer S. Beasley of the City of Raleigh ,State of North Carolina ,their true and lawful Attorney(s)-in-Fact, each in their separate capacity if more than one is named above, to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their_)zusness of guaranteeing the fidelity of persons, guaranteeing I:he performance of contracts and executing or guaranteeing bonds and undertakings required or pennitted'in anv a •tions or Vitro, eedings allowed by law. IN WITNESS WHEREOF, the Companies have caused this insti i int,'nc r~ ~ lu ~i~neii :n,~l i,h~ it < <~rporate seals to be hereto affixed, this day of October 2007 Farmington Casualty Cod,' Fidelity and Guaranty't1s ram ('9mpan~y . Fidelity and Guaranty Insui~~ee Underwriters, Inc. Seaboard Surety Company St. Paul Fire and Marine Insurance Company 12th St. Paul Guardian Insurance Company St. Paul Mercury Insurance Company Travelers Casualty and Surety Company Travelers Casualty and Surety Company of America United States Fidelity and Guaranty Company pASU,~~~ DO3„~ $tV~Ty RE 6 ~N INS` ,.:+ ~MSUq P tY ANO -`~Y~y~ r ` ~'s- ' .y ~ , ....... 9 P ............9k'c J ~ 3 NAO w9~'Y~ FY' "YJ D y ~~ ~ C ~ A Cp0.POR~~i~ Q4.. .:y~,_ 4p Gm ~y'~ `t`- 51982 0 ~DAPORATED ~J _ ~ m~ t _, m~ RVOR4t' «~ S 1977 1.927 '~ ~ i i f Z i _._ : n ~ a HARTFORD i J' Hp Jt r.'i y,~*~S y ~ ~ 19.51 N'O ~ ~ ~~,SEAI..'oi ~y~.SEAL%s°O: "~ CONR. S ~~r"'~~ ~ 1896 ~ bin • ~~, i ~ `~OF NEW ~Mwwm `AGO a13 'My',Pr ~5....'.: •*~ad° 'db1 Fear ~r ~ r~q lym A~~ State of Connecticut By; City of Hartford ss. Georg Thompson, enior ice President On this the 12th day of October 2007 before me personally appeazed George W. Thompson, who acknowledged himself to be the Senior Vice President of Farmington Casualty Company, Fidelity and Guazanty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guazdian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, and that he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. G•T~ In Witness Whereof, I hereunto set my hand and official seal. ~ ~ My Commission expires the 30th day of June, 2011. ~ AteBUG~* ~ e . ~.~. Marie C. Tetreault, Notary Public 58440-5-07 Printed in U.S.A. WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER This Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of Farmington Casualty Company, Fidelity and Guazanty Insurance Company, Fidelity and Guazanty Insurance Underwriters, Inc., Seaboazd Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of Ameiica, and United States Fidelity and Guaranty Company, which resolutions aze now in full force and effect, reading as follows: RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys-in-Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of •authority may prescribe to sign with [he Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her; and it is FURTHER RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any. part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary; and it is FURTHER RESOLVED, that any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary; or (b) duly executed (under seal, if required) by one or more Attorneys-in-Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED, that the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any power of attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys-in-Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such power of attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached. I, Kori M. Johanson, the undersigned, Assistant Secretary, of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guazanty Insurance Underwriters, Inc., Seaboard Surety Company, St. Paul Fire and Marine Insuranc_eµ Co,Jnpany, St. Paul Guazdian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Sur Tlrpan America~~d United States Fidelity and Guazanty Company do hereby certify that the above and foregoing is a true and correct copy of the PowetIomeye d b} rsaaz ompanies, which is in full force and effect and has not been revoked. ' IN TESTIMONY WHEREOF, I have hereunto set my hand and.ailixe.I' ihe~wrals ~~t'~.u~t (~hlilp~nies this 9th day of ~~~..~ October , 20 08. c_~r~ G~ Kori M. Johans Assistant Secretary G~Sf/q< StwErY yFl0.E 6 ~pM ~NgG t 1N34H P~lV ANO Y • _~S- ~ J 4 O ~"~ . q jP,.....~..q ~J p ~,~I,Na~lFly 2 mfr ~' CT 74 < v 0 F '4 ~. G r' , ~ S O (1 '^^"rNW Z ~ICp0.VORA>F h W: 4„~~~ORATf ~E ~ '~ 1 9 8 2 o y 9]7 1,927 '~^ c~: 1'^ t i . o l a HARTFORD, fNATFd1~U.~ < ~~. S a ~ ~ ~~ ~'.. 'n ~t 'o W •- 1896 crt'_ 1951 D m SEAL o3 0,, c~N~ ° ~~~ ~ ~< bY~ A+ ~! l~ a # ~ 'V O' 'L ~.. .~ 6:$TSALj'D u: !~ • ,~ifa~ANt ~ N ~' suF F c d. •......- ad'J v. •... • a s a '~I OFrytYt AHC f~ A~ js ...... *A 6t PPa To verify the authenticity of this Power of Attorney, call 1-800-421-3880 or contact us at www.travelersbond.com. Please refer to the Attorney-In-Fact number, the above-named individuals and the details of the bond to which the power is attached. r Client#:126284 RESOBUI ACORD CERTIFICATE OF LIABILITY INSURANCE D"'m' TM onlZ a P~ooucER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Wachovia insurance Serv-RA, NC ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE PO f3ox 97787 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Raleigh, NC 27624-7787 8 Z2-4154 INSURERS AFFORDING COVERAGE NAIC # INSURED fNSURERA: Westfield National Insurance Company 24120 Resolute Building Company INSURER a: Westfield Insurance Company 24112 PO Box 3656 INSURER C: Chapel Hill, NC 27515 INSURER D: INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LT TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS A GENEftALL1ABILITY TRA4527240 10/01/08 1D/D1/09 EACH OCCURRENCE S1 D00000 X COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED s300 ODiI CLAIMS MADE D OCCUR MED EXP {My one person) S10 OOD PERSONAL b ADV INJURY S1 OOO OOO GENERAL AGGREGATE j2 ODO 000 X GEN'L AGGREGATE LIMB APPLIES PER: PRODUCTS - COMP/OPAGG SZ 000 OOD POLICY X jRa LOC A AUTOMOBILE LIABILITY TRA4527240 10/01/08 10/01109 X ANY AUTO ~~Mao~d~t) INGLE LIMIT j1,000,OOO ALL OWNED AUT03 BODILY INJURY j SCHEDULED AUTOS {Per Person) X HIRED AUTOS X BODILY INJURY (P id [ j NON-OWNED AUTOS er aoc en ) X $250 Comp Ded X 5500 Coll Ded (P ~a«~demS AGE s GARAGE LU181LlIY AUTO ONLY - EA ACCIDENT j ANY AUTO EA ACC OTHER THAN S AUTO ONLY: AGG S A EXCESSfUMBRELLa IJABILITV TRA452724D 10/D1/08 10/01/09 EACH OCCURRENCE S1D 000 000 X OCCUR ~ CWMS MADE AGGREGATE j1O 000 000 S DEDUCTIBLE S X RETENTION j O j B WORKERS COMPENSATION AND ' B L WCP4527399 10101/08 10!01/D9 X we sTATU- oTH- EMPLOYERS LIA I ITY ANY PROPRIETORlPARTNERJEXECUTNE E_L. EACH ACCIDENT j1 OO ODO N OFFICERJMEMBER EXCLUDED? der N ~ d E.L. DISEASE - EA EMPLOYEE j1 DO OOO yes, escr e un SPECIAL PROVISIONS Nebw E.L. DISEASE -POLICY LIMIT j500,000 OTHER DESCRIPTION OF OPERATIONS l LOCATIONS l VEHK:LES i EXCLUSK)NS AODEO BY ENDORSEMENT l SPECUIL PROVISIONS Re: Orange County Library 137 Margaret Lane, Hillsborough, NC Telesis Constructiong Management, LLC, Brockwell and Associates, EDi, Inc. Gardner & McDaniel, PA, Summit Consulting and Orange County are named as additional insureds with respect to General Llabllity and Automobile (See Attached Descriptions) Telesis Construction Management, LLC 1000 Corporate Drive, Suite 109 HiNsborough, NC 27278 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER 41fILL ENDEAVOR TO MAIL ~0.._ DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LWBILITY OF ANY KIND UPON THE INSURER, ITS AOENTS OR AUTI~7'~ _ -"' ra.a,rrcu za Iswuua/1 O! 3 #51409387/M14D5195 LHA02 ®ACORD CORPORATION 1988 r IMPORTANT !f the certificate holder is an ADDITIONAL INSURED, the poiicy(ies} must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATtON IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does nat constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25S (2001108) 2 of 3 #51409387/M1405195 r DESCRIPTIONS. (Continued from Page 1) Liability. The Umbrella follows form. A waiver of subrogation applies in favor of Telesis Construction Management, LLC, Brockwell and Associates, EDi; Inc. Gardener 8 McDaniel, PA, and Summit Consulting for general li• 'ty, automobile liability, and workers compensation. aMS 25.3 (zooslos) 3 of 3 #514093871M1405195 Client: 126284 RESOBUI ACORD CERTIFICATE OF LIABILITY INSURANCE °"Y""' ,~ 08;;$,08 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Wachovia Insurance Services ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE PO Box 97787 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Raleigh, NC 27624-7787 P:919-676-8834 F:919-676-3307 INSURERS AFFORDING COVERAGE NAIC # INSURED INSURER A: Amerisure Companies 19488 Resolute Building Company INSURER B: Amerisure Mutual Insurance Company PO Box 3656 INSURER c: Amerisure Insurance Company Chapel Hilt, NC 27515 INSURER D: INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. IN LTR DD' NSR TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DAT M DD POLICY EXPIRATION DATE LIMITS A GENERAL LIABILITY CPP2013875050007 10/01/07 10/01/08 EACH OCCURRENCE $1 QQQ QQQ X COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED $300 000 CLAIMS MADE ~ OCCUR MED EXP (Any one person) $1 Q QOQ PERSONAL 8 ADV INJURY $1 000 000 GENERAL AGGREGATE $2 000 000 X GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS -COMP/OP AGG $2 Q00 000 POLICY X j CT LOC C AUTOMOBILE LIABILITY CA2013873050007 10/01/07 10/01/08 X ANY AUTO COMBINED SINGLE LIMIT (Ea accident) $1,000,000 ALL OWNED AUTOS BODILY INJURY $ SCHEDULED AUTOS (Per person) X HIRED AUTOS ~ BODILY INJURY $ X NON-OWNED AUTOS (Per accident) X $250 Comp Ded X $500 Coll Ded PROPERTY DAMAGE (Peracddant) $ GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ ANY AUTO EA ACC OTHER THAN $ AUTO ONLY: AGG $ B EXCESSNMBRELLALIABILITY CU2013877 10/01/07 10/01/08 EACH OCCURRENCE $1Q Q00 QQQ X OCCUR ~ CLAIMS MADE AGGREGATE $10 000 OOQ DEDUCTIBLE X RETENTION $ A $ B WORKERS COMPENSATION AND ' WC201388105 10/01/07 10/01/08 X WC STATU- OTH- EMPLOYERS LIABILITY ANY PROPRIETOR/PARTNERlEXECUTIVE E.L. EACH ACCIDENT $100000 N OFFlCER/MEMBER EXCLUDED? K E.L. DISEASE - EA EMPLOYEE $100 000 yes, describe under SPECIAL PROVISIONS below E.L. DISEASE -POLICY LIMIT $500 000 OTHER DESCRIPTION OF OPERATIONS /LOCATIONS /VEHICLES !EXCLUSIONS ADDED BY ENDORSEMENT /SPECIAL PROVISIONS Re: Orange County Library 137 Margaret Lane, Hillsborough, NC. Telesis Constructiong Management, LLC, Brockweil and Associates, EDi, Inc. Gardner 8r McDaniel, PA and Summit Consulting are named as additional insureds with respect to General Liability, Automobile Liability, and Umbrella Liability for ongoing and completed (See Attached Descriptions) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION Telesis Construction Management, DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL ~._ DAYS WRITTEN LLC NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL 1000 Corporate Drive, Suite 109 IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR Hillsborough, NC 27278 REPRESENTATIVES. AUTHORIZED REPRESENTATIVE A~,UKU L~ ILUU1/U2f) 1 of 3 #S1388916/M1263070 LHA02 ©ACORD CORPORATION 1988 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25.5 (2001/08) 2 of 3 #S1388916/M1263070 AMS 25.3 (2001/08) 3 of 3 #S1388916lM12fi3070 POLICY NUMBERS TRA 4527240 THIS ENDORSEMENT CHANGES THE POLICY. PEASE READ IT CAREFULLY. EARLIER NOT'IGE 4F CANCELLATION PROVIQEa BY US This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE PART CRIME ,4ND FIQELITY COVERAGE PART EQUIPMENT BREAKDOWN COVERAGE PART FARM COVERAGE PART COMMERCIAL PFtQPERTI( COVERAGE PART COMMERCIAL INLANDMARINE COVERAGE PART COMMERCIAL LI,4t31LITY UMBRELLA COVERAGE PART OWNERS AND CONTRACTORS PROTECTIVE LIABILITY COVERAGE PART COMMERCIAL GENERAL LIABILII"Y COVERAGE PART LIQUOR LIAt31LITY COVERAGE PART PROFESSIONAL LIABILITY COVERAGE SCHEDULE Number of Days' Notice 30 Name t3f AdditionaC Insured PersoMs) Qr Oraanizationts) Ls~cafionts} c7i Covered t~perations ORANGE COUNTY ALL: PROJECTS PO Bt)?C 8181 HILLSBOROUGH NC 27278 {If no entry appears above, information required: to complete this Schedule will be shcwvn in .the Dectaratlans as applicable to this endorsement.} For any statuta~iiy permitted reason other than nonpayment of premiutYi, the number of days required. for notice of caneeltation, as provided in paragraph ~. of either the CANCELLATION Common Policy Condi- tion or as amended by an applicable state canceNation endorsement, is rzcreased to the number of days shown in the Schedule above.. Copyright, Insurance Services omce. Inc., i887 ~~, TO 35 ' POLICY NUMBER: TRA 4527240 COMMERCIAL LIABILITY UMBRELU4 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. EARLIER NOTICE OF CANCELLATION PROVIDEQ BY US This endorsement modifies insurance provided under the following: COMMERCIAL L1A$11_ITY UMBREI_<rA COVERAGE PART SCHEDiJLE Number Of Days' Native 3fl If no entry appears above, information required to complete this 5chedu#e will be shown in the Qecfa rations as applicable to this endorsement;} For any statutorily permitted reason other than nonpayment of premium, the number of days required for notice of cancellation, as provided in Paragraph 2', of either the Ganceilation Common Policy Condition or as amended by an applicable state cancellation endorsement, is increased to the number of days shown in the Schedule above.. copyright, Insurance Services Olfice, 1nc:, 2~ Glj Q~ Q4 09 QQ ~'~C~~M{~R Gtr j -.;!~~~± . ,~~ . _. ~t~~.; ~'~ , :~ :~~~~~~ € ~i~~'' ~~ is . ?I .. ,... F`_ -. .. .. .. -. ;;I a'i"t sty? ;~ (r'~ ((a~33 i"t'4~~ @€rftrtn~~,~s„ ~~~€E:.~. ~ a. ~~•~~, °7~~ ~2 . , ~~~~,n°~ ,. ~~i , ~ ~F- a n' th~ ~ n.,~y Fi?:LJtZ'.'.' 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