INTERIM AGREEMENT This INTERIM AGREEMENT

97 Pages·2014·6.66 MB·English

INTERIM AGREEMENT

This INTERIM AGREEMENT ("Interim Agreement") dated this __ day of
February, 2014, is between the CITY OF WILLIAMSBURG, a Virginia Municipal
Corporation ("Owner") and DANIEL & COMPANY, Inc., a Virginia Corporation
(“PPEA Contractor”), doing business in Virginia, whose Identification Number (FEIN) is
54-1798128, (Owner and PPEA Contractor may be referred to herein individually as a
“Party” or together as the “Parties”) and is binding on the Parties from the date
performance begins.

WHEREAS, Owner contemplates development of the following Project1
identified as:

Project Title: Stryker Center

The Project consists of Design and Construction of an approximately 15,000 sf.
building located on property owned by the City of Williamsburg containing 2.346± acres
located at 412 N. Boundary Street, Williamsburg, Virginia (Tax Map No. 465-0A-00-
006). Said construction shall include demolition of the existing Stryker Building
currently located on the property and erection of a new building to contain elements as
provided in the City of Williamsburg Stryker Center Concept, dated September 30, 2013,
prepared by Architect and attached as Attachment A. The design for said building shall
be substantially similar to that shown in the design modifications submitted to the Owner
on December 2, 2013, and presented to the Williamsburg City Council on December 3,
2013, by Architects and attached as Attachment C, except for any design modifications
made during the term of this Interim Agreement as approved by Owner.

WHEREAS, PPEA Contractor submitted its PPEA Proposal, attached as
Attachment B, on May 15, 2013, under the Public-Private Education Facilities and
Infrastructure Act of 2002 (the “PPEA”), Va. Code § 56-57.1, et seq., in order to form a
public-private effort to provide Owner certain design, permitting, demolition, and
construction services in connection with the Project; and

WHEREAS, Owner had received a prior unsolicited proposal on February 1,
2013, (the “Initial Proposal”) and, as required by applicable law, on or about February 15,
2013, Owner advertised receipt of such Initial Proposal and invited any competing
proposals to be submitted to it by April 12, 2013 for consideration, which deadline was
subsequently extended to May 15, 2013. On or about October 1, 2013, Owner requested
that all qualifying proposers revise their designs and resubmit revised designs to the
Owner by or before November 22, 2013, which deadline was subsequently extended to
December 2, 2013. On December 3, 2010, Owner reviewed revised designs received
from the qualifying proposers pursuant to Owner’s advertised invitation;

1 Initially capitalized terms used in these recitals shall have the meaning given them in
Paragraph 2, below.
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WHEREAS, Owner subsequently determined that the PPEA Contractor’s
Proposal (the “Qualifying Proposal”), attached as Attachment B, and its revised design,
attached as Attachment C, qualified and advised PPEA Contractor that Owner intended
to proceed with negotiations on an interim agreement for the design and construction of
the Stryker Center on December 12, 2013; and

WHEREAS, Owner and PPEA Contractor desire to commence the Services and
Work, on the terms and subject to the conditions set forth in this Interim Agreement,
while the Parties negotiate a definitive Comprehensive Agreement for PPEA Contractor's
full completion the Project (the "Comprehensive Agreement").

NOW, THEREFORE, in consideration of the Recitals set forth above, and good
and valuable consideration as set forth below, the
Parties agree as follows:

1. Representations and Warranties. Owner and PPEA Contractor each represents to
the other that the following representations and warranties given by it are true and correct
to the best of its knowledge, information, and belief, and shall remain so throughout the
term of this Interim Agreement.
A. Owner’s Representations and Warranties. Owner hereby represents and
warrants to PPEA Contractor as follows:

(1) Owner is a municipal corporation duly chartered and operating under the laws
of the Commonwealth of Virginia and has full power, right and authority to
execute, deliver and perform its obligations under, in accordance with and subject
to the terms and conditions of this Agreement.

(2) Each person executing this Agreement on behalf of Owner is duly authorized
to execute each such document on behalf of Owner.

(3) Neither the execution and delivery by Owner of this Interim Agreement and
any other documents executed concurrently herewith to which Owner is a party,
nor the consummation of the transactions contemplated hereby or thereby, is in
conflict with or will result in a default under or violation of any other agreements
or instruments to which it is a party or by which it is bound.

(4) There is no action, suit, proceeding, investigation or litigation pending and
served on Owner as of the date of this Agreement which challenges Owner’s
authority to execute, deliver or perform, or the validity or enforceability of this
Agreement and the other related documents to which Owner is a party, or which
challenges the authority of Owner official executing this Agreement or the other
related documents, and there is no pending, pending and unserved, or threatened
action, suit, proceeding, investigation or litigation with respect to such matters of
which Owner is aware.

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(5) With respect to this Interim Agreement, Owner is in material compliance with
all laws, regulations and ordinances applicable to Owner or its activities in
connection with this Interim Agreement and Attachments .

(6) Owner certifies that all material representations, information and data
provided in support of or in connection with the Project are true and correct.

(7) These representations and warranties of Owner contained herein shall survive
expiration or termination of this Interim Agreement.

B. PPEA Contractor’s Representations and Warranties. PPEA Contractor hereby
represents and warrants to Owner, as of the date of this Interim Agreement, as follows:

(1) PPEA Contractor represents that Daniel & Company, Inc., does business in
Virginia, is licensed in Virginia as a Class A contractor (License No.
2705.034063A) and in signing this Interim Agreement as well as such
Comprehensive Agreement as may be entered into between the
Parties, is acting on behalf of itself and in so doing, has full power and authority
to bind itself to the terms thereof.

(3) PPEA Contractor has taken or caused to be taken all requisite action to
authorize the execution and delivery of, and the performance of its obligations
under this Interim Agreement and Attachments to which PPEA Contractor is a
party.

(4) Each person executing this Interim Agreement or any other related document
on behalf of PPEA Contractor has been or will at such time be duly authorized to
execute each such document on behalf of PPEA Contractor.

(5) Neither the execution and delivery by PPEA Contractor of this Interim
Agreement and Attachments nor the consummation of the transactions
contemplated hereby or thereby, is in conflict with or will result in a default under
or a violation of the governing instruments of PPEA Contractor or any other
agreements or instruments to which it is a party or by which it is bound.

(5) There is no action, suit, proceedings, investigation or litigation pending and
served on PPEA Contractor which challenges PPEA Contractor’s authority to
execute, deliver or perform, or the validity or enforceability of this Interim
Agreement and the other related documents to which PPEA Contractor is a party,
or which challenges the authority of PPEA Contractor official executing this
Agreement or the other related documents; and there is no pending, pending and
unserved, or threatened action, suit, proceeding, investigation or litigation with
respect to such matters of which PPEA Contractor is aware.

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(6) PPEA Contractor is in material compliance with all laws, regulations and
ordinances applicable to PPEA Contractor or its activities in connection with this
Interim Agreement and the other related documents.

(7) PPEA Contractor certifies that all material representations, information and
data provided in support of, or in connection with, the proposal for the Project are
true and correct.

(8) PPEA Contractor acknowledges that Owner is prohibited by law from
undertaking any indemnity obligations to PPEA Contractor.

(9) The representations and warranties of PPEA Contractor contained herein shall
survive expiration or termination of this Interim Agreement.

2. Definitions. The following definitions apply to this Agreement. Capitalized Terms not
defined herein shall have the meanings as defined in the PPEA, the Guidelines, and
PPEA Contractor’s Proposal as modified by Attachment C to this Agreement.
A .“Codes and Standards” means all the following standards, permits and
approval: the City of Williamsburg road and utility standards; The Virginia Uniform
Statewide Building Code; City of Williamsburg site plan design requirements and
procedures in the City of Williamsburg zoning ordinance, Architectural Review Board
demolition approval, demolition permit, land disturbing permit and bond, and right-of-
way permit if site development extends into a public right of way, as well as all practices
and the level of care and skill that, as of the date and during the term of this Interim
Agreement, is customary in the relevant design and engineering professions in the
Commonwealth of Virginia for similar projects .

B. “Architect” means the architectural firm of Stemann-Pease Architecture, LLC.

C. “Design Professionals” or “Design Consultants” means the Architect,
engineer(s), and consultant(s) engaged by PPEA Contractor to provide Services relating
to the Project and the firms that employ them. The engineers designated in the Proposal
are The Structures Group (Structural Engineer), LandTech Resources Inc. (Civil
Engineer) and Dunlap & Partners (Mechanical, Electrical and Plumbing Engineer), along
with the other consultants shown on page 70 of the Volume 1 of Attachment B. In the
event PPEA Contractor desires to change Design Professionals, approval must be
obtained from Owner, which approval may not be unreasonably withheld, however,
PPEA Contractor may not change the Architect for the project.

D. “Facility” means the Stryker Center, as more specifically described in the
Proposal.

E. “Plans” means Project-specific drawings prepared by the Design Professionals
which describe the Project in sufficient detail to confirm compliance with applicable
Codes and Standards and for PPEA Contractor to perform the Work under a
Comprehensive Agreement between Owner and PPEA Contractor in accordance with the
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terms and conditions thereof. Construction documents for the Project itself are outside of
this definition and will be provided as part of the Comprehensive Agreement.

F. “Project” means the demolition, site development, design, and construction of
the Facility as contemplated by the Proposal, as modified by the revised conceptual
design submitted by Architects on December 2, 2013. The term “Project” includes both
the entirety of the Project and/or any part or portion thereof.

G. “Proposal” means PPEA Contractor’s Proposal dated May 15, 2013, attached
hereto as Attachment B, as modified by Attachment C, revised designs submitted by
Architects, dated December 2, 2013.

H. “Services” for purposes of this Interim Agreement means all professional
design and engineering services as needed for the construction of the Facility and
preparation of all submissions and obtaining all permits and approvals necessary to
proceed with the Project in accordance with the Plans as defined herein below, but shall
not include construction documents or contract administration services, which the Parties
contemplate will be addressed in and provided as part of the Comprehensive Agreement.

I. “Site” means property owned by the City of Williamsburg, which property is
the site of the current Stryker Building, containing 2.346 acres (Tax Map Parcel Number
465-0A-006) and which property is located at 412 N. Boundary Street in the City of
Williamsburg.

J. “Work” means (i) the demolition of the existing Stryker Building located at 412
N. Boundary Street in the City of Williamsburg in accordance with the demolition scope
of work in the Demolition and Site Development Scope of Work dated January 27, 2014,
including demolition allowances and attached hereto as Attachment E and (ii) site
development work in accordance with the site development allowances contained in the
Demolition and Site Development Scope of Work in Attachment E.

K. The “Guidelines” means and refers to the document titled, Public-Private
Education Facilities and Infrastructure Act of 2002, Model Guidelines, Rev. Sept. 2007,”
attached hereto as Attachment D.

3. PPEA Contractor’s Responsibilities.

A. Under this Interim Agreement, PPEA Contractor, using the Design
Professionals as needed, shall provide all Services necessary to enable Owner to proceed
with construction of the Project, all as more particularly set forth in the Proposal.

B. PPEA Contractor shall provide the Services in accordance with the Interim
Agreement schedule attached as Attachment G.

C. Owner and PPEA Contractor shall use their best efforts to maintain the Interim
Agreement Schedule, which can be modified by mutual written agreement of the Parties
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as circumstances warrant and each Party agrees to act in good faith with respect to
schedule modifications requested by the other Party and not to unreasonably withhold
consent thereto.

D. PPEA Contractor shall procure and throughout the term of this Interim
Agreement shall maintain insurance in accordance with Articles 9 and 10(C) below.

E. Owner does not provide to PPEA Contractor any warranty, express or implied,
regarding any services or design performed or that may be performed by Owner, if any, or
PPEA Contractor’s consultants, agents or employees for the Project. Subject to Paragraph
11, below, PPEA Contractor shall be responsible for all acts and omissions of the Design
Professionals.

4. Owner’s Responsibilities.
A. Owner shall provide a proposed form of Comprehensive Agreement in
sufficient time to avoid delay to the Project, and the Parties shall negotiate in good faith
the terms of the Comprehensive Agreement.

5. Interpretation and Intent.

A. This Interim Agreement forms the entire Agreement between Owner and
PPEA Contractor with respect to the Project. No oral representations or other agreements
have been made or entered into by the Parties except as specifically stated in this Interim
Agreement.

B. Execution of this Interim Agreement shall not bind Owner to engage or retain
PPEA Contractor for any additional services through a subsequent Interim Agreement, a
Comprehensive Agreement or any other contract, nor shall it bind PPEA Contractor to
enter into any other agreement with the Owner, including without limitation, a
subsequent Interim Agreement, the Comprehensive Agreement, or any other contract.

6. Contract Price.

If Owner elects to proceed with the Project after acceptance of PPEA Contractor’s
Schedule of Values, a Lump Sum Price shall be set forth in a Comprehensive Agreement
between Owner and PPEA Contractor in accordance with the PPEA and the Guidelines,
which shall include the design phase price, and demolition and site development price set
forth in Paragraph 7.

7. Interim Agreement Price and Payments.

A. Design Phase Price: In consideration of its design services under this Interim
Agreement, Owner shall pay PPEA Contractor the sum of THREE HUNDRED
SIXTYAND 00/100 DOLLARS ($360,000.00) (the “Interim Agreement Design Phase
Price”) payable as provided in subsection E below. The Interim Agreement Design Phase
Price is a not-to-exceed amount that will be billed and paid based on percentage of
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completion of the Services identified as Design Fees on Attachment E and F. In the event
the Parties enter into a Comprehensive Agreement, any amounts paid pursuant to this
Interim Agreement shall be credited against PPEA Contractor's Proposal Price for
purposes of negotiating the Lump Sum Price to be contained in the Comprehensive
Agreement if both Parties agree to enter into the Comprehensive Agreement.

B. General Conditions Price: In consideration of the general conditions services,
that is, those services necessary for the design phase, to prepare the site for demolition
and site development work, more specifically described in Attachments E and F, Owner
agrees to pay to PPEA Contractor the sum of ONE HUNDRED FORTY NINE
THOUSAND FIVE HUNDRED and 00/100 DOLLARS ($149,500.00) (the “General
Conditions Price”), said amount to be a not-to-exceed amount that will be billed and paid
based on completion of the services and payable as provided in subsection E below.
Additionally, Owner will reimburse PPEA contractor for the cost of obtaining the
Performance and Payment Bond provided for in subsection 10(F) below, and shall
reimburse PPEA Contractor the costs paid for any license, as well as for insurance and
permit fees required for the Project, the estimated cost for which is shown on Page 2 of
the Schedule of Values (Attachment F).

C. Demolition Price: In consideration of the demolition of the existing Stryker
Building as provided in Article 8 and Attachment E and F, Owner will pay to PPEA
Contractor the sum of TWO HUNDRED ONE THOUSAND EIGHT HUNDRED AND
00/100 DOLLARS ($201,800.00) (the “Demolition Price”), said amount to be billed and
paid based on completion of services and payable as provided in subsection E below. The
Parties understand that the Demolition Price contains allowances which are estimates
based on the conditions known by the Owner and PPEA Contractor at the time of this
Interim Agreement, and it may be necessary to adjust allowances based on actual costs
once Work begins. If the actual cost of performing specific items of work shown as an
allowance in the Schedule of Values (Attachment F) exceeds the allowance provided for
in the Schedule of Values, Owner must approve said adjustment in advance of PPEA
Contractor performing the work. Any amounts paid pursuant to this provision of this
Interim Agreement shall be credited against PPEA Contractor’s Proposal Price for
purposes of negotiating the Lump Sum Price contained in the final Comprehensive
Agreement if both Parties agree to enter into the Comprehensive Agreement.

D. Site Development Price: In consideration of services developing the site after
demolition of the existing Stryker Building performed by PPEA Contractor as provided
in Article 8 and Attachments E and F, Owner will pay to PPEA Contractor the sum of
THREE HUNDED SEVENTY FIVE THOUSAND FIVE HUNDRED and 00/100
DOLLARS ($375,500.00) (the “Site Development Price”), said amount to be paid based
on completion of services and payable as provided in subsection E below. The Parties
understand that the Site Development Price contains allowances which are estimates
based on the conditions of the site known by the Owner and PPEA Contractor at the time
of this Interim Agreement, and that it may be necessary to adjust allowances based on
actual cost once Work begins. If the actual cost of performing specific items of work
shown as an allowance on the Schedule of Values (Attachment F) exceeds the allowance
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provided for in the Schedule of Values, Owner must approve said adjustment in advance
of PPEA Contractor performing the work. Any amounts paid pursuant to this provision of
this Interim Agreement shall be credited against PPEA Contractor’s Proposal Price for
purposes of negotiating the Lump Sum Contract Price contained in the final
Comprehensive Agreement if both Parties agree to enter into the Comprehensive
Agreement.

E. Progress Payments: Beginning on the calendar month next following the
month when all Parties have signed this Interim Agreement, PPEA Contractor shall
submit to Owner on the fifth (5th) day of each month, PPEA Contractor’s Application for
Payment for Services and/or Work rendered under this Interim Agreement since the
previous application for payment, together with reimbursement of all permitting fees and
costs advanced by PPEA Contractor or the Design Professionals to State and/or Local
Permitting Agencies pursuant to subsection B above. Applications for Payment shall be
based on the agreed Schedule of Values attached hereto as Attachment F, along with any
adjustments necessary for those items shown as allowances on Attachment F.
Applications for payment shall be in form and level of detail as reasonably required by
Owner. Owner shall make payment within thirty (30) days after Owner’s receipt of each
properly submitted and accurate Application for Payment.

8. Demolition and Site Work.

A. Owner and PPEA Contractor agree that, in order to expedite the Project, the
Parties agree to commence demolition of the existing building on the site and certain site
development work pursuant to and during the terms of this Interim Agreement. The
Parties also agree that, if the design services pertaining to such demolition and site
development work are sufficiently completed prior to execution of the Comprehensive
Agreement to enable site development work to proceed, Owner may request PPEA
Contractor to proceed with site development work for the new construction, including,
but not limited to preparing the site for the new construction, installation of storm water
management systems and sanitary sewer and water lines during the interim phase of the
project. The Parties understand that initiation or completion of certain elements of the
work contemplated herein may not be possible until such time as the design professionals
have substantially completed their studies and designs for the new construction. In that
event, Owner and PPEA Contractor shall negotiate in good faith and prepare and execute
any additional agreements, which shall include, without limitation, the price for such
work, necessary to allow said site development work to proceed. Demolition shall
commence according to the schedule contained in Attachment G, and shall be completed
no later than 65 days after commencement. Demolition and possible site development
work shall be performed in accordance with Attachment E, “Demolition and Site
Development Scope of Work”.

B. Demolition shall include all parts of the existing building, including the
complete removal of the walls and floor of the basement of the existing building. PPEA
contractor agrees to recycle, or cause to be recycled, as much of the material from the
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existing structure as reasonably possible. The Parties agree to document the same for
purposes of future LEED Certification of the project.

C. PPEA Contractor shall supervise and direct demolition and site development
work competently and efficiently, devoting such attention thereto and applying such
skills and expertise as may be necessary to perform the demolition in accordance
herewith. PPEA Contractor shall be solely responsible for the means, methods,
techniques, sequences and procedures used in performing the work. PPEA Contractor
shall ensure that upon completion of the demolition, the site is properly prepared for
commencement of the construction phase of the Project, and shall ensure that the site is
properly filled using appropriate fill material of good and sufficient quality to allow
construction of the project on said fill, compacted to allow for immediate construction of
the project.

D. PPEA Contractor shall take reasonable care not to damage structures and
facilities adjacent to the site of demolition, including the plaza, police station, and also
including adjacent roadways, sidewalks, and utilities not included in the demolition.
PPEA Contractor shall repair or replace facilities damaged by demolition activities to
the satisfaction of the Owner.

E. PPEA Contractor shall keep a superintendent on site during all times in which
demolition and site development work is occurring. Superintendent shall be PPEA
Contractor’s representative at the site and shall have authority to act on behalf of PPEA
Contractor. All communications given to the Superintendent shall be as binding as if
given to the PPEA Contractor. Superintendent shall ensure that the site is kept secure
and unauthorized persons are not permitted on-site during demolition.

F. PPEA Contractor shall promptly and properly dispose of all debris, according
to industry standards and in compliance with all federal, state and local laws, including
any applicable environmental regulations. In no event shall debris remain on site once
demolition is completed. Any hazardous materials found in the building shall be
removed and disposed of in accordance with all regulatory and environmental
requirements, utilizing all necessary safety precautions as are usual in the industry.
PPEA Contractor shall obtain any permits necessary for the removal or disposal of any
hazardous materials.

G. PPEA Contractor shall provide competent, suitably qualified personnel to
perform the demolition and site development work as required herein. Contractor shall
at all times maintain good discipline and order at the site. Except in connection with the
safety or protection of persons or work at the site or adjacent thereto, all work shall be
performed between the hours of 7:00 am and 7:00 pm.

H. PPEA Contractor shall furnish all equipment, labor, transportation, equipment
and machinery, tools, appliances, fuel, power, water, and sanitary facilities and all other
facilities and incidentals necessary for the execution and completion of the Work, which
shall be in good repair and adequate to perform the Work.
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I. All demolition and site development work shall be performed in a safe, good
and workmanlike manner.

J. Owner may require weekly meetings with the Superintendent and Owner’s
representatives to discuss the progress of the demolition and to resolve any problems
encountered during the demolition. During the course of demolition and site
development work, Owner may inspect site with Superintendent upon request.

K. Owner has provided to PPEA Contractor a third party assessment of the
asbestos and hazardous materials contained in the existing Stryker Building, dated April
14, 1989. Owner provides no warranties, expressed or implied as to the quality or
correctness of the data contained therein, but provides the assessment to the PPEA
Contractor for informational purposes only. Owner has also provided to PPEA
Contractor surveys and other geotechnical studies on the site, and PPEA Contractor
acknowledges that it has received those documents.

9. Insurance.

At all times during the performance of the work under this Agreement, PPEA
Contractor shall take out and maintain each of the following insurances with insurance
companies reasonably satisfactory to Owner:

A. Workers’ Compensation and Employers’ Liability Insurance for all of its
employees engaged in work on the Project in an amount not less than the minimum
required by Va. Code §§2.2-4332 and 65.2-100 et seq., and, in case any of such work on
the Project is sublet, PPEA Contractor shall require each subcontractor similarly to
provide Workers’ Compensation and Employers’ Liability Insurance for all of the latter’s
employees to be engaged in such work. Upon written request by Owner, PPEA
Contractor shall submit on the form provided by Owner a Certificate of Coverage
verifying Workers’ Compensation. PPEA Contractor shall likewise obtain a Certificate
of Coverage for Workers’ Compensation coverage from each subcontractor prior to
awarding the subcontract and maintain in on-site files.

B. Commercial general liability insurance to include Premises/ Operations
Liability, Products and Completed Operations Coverage, Independent PPEA Contractor’s
Liability, Owner’s and PPEA Contractor’s Protective Liability, and Personal Injury
Liability, which shall insure it against claims of personal injury, including death, as well
as against claims for property damage, which may arise from operations under this
Agreement, whether such operations be by itself or by any subcontractor, or by anyone
directly or indirectly employed by either of them. The amounts of general liability
insurance shall be not less than $2,000,000.00 per occurrence and $2,000,000.00
aggregate combined limit. Owner, and its officers, employees and agents, shall be named
as an additional insured with respect to the Services being performed by PPEA
Contractor.
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