COMPREHENSIVE AGREEMENT
between
THE COUNTY OF SOUTHAMPTON, VIRGINIA
and
BUNROOTIS, LLC
for
INDUSTRIAL PARK SITE GRADING, CONSTRUCTION OF THE COMPENSATORY MITIGATION SITE AND DEVELOPMENT AND OPERATION OF THE CHEROENHAKA WETLAND AND STREAM MITIGATION BANK
January __, 2010
1
I-823442.5
TABLE OF CONTENTS
ARTICLE PAGE NUMBER
1. Incorporation of Recitals 3
2. Contract Documents 3
3. Definitions 3
4. General Scope 5
5. Interpretation; Intent and Incorporation 5
6. Ownership of Work Product 6
7. Construction of the Industrial Park Site Grading and Compensatory Mitigation Site 6
8. Lease of Land for Development of Cheroenhaka Wetland and Stream Mitigation Bank 11
9. Project Schedule 13
10. Plan of Finance 13
11. Termination for Cause 13
12. Termination for Convenience 17
13. Payment Bonds, Performance Bonds, and Other Security; No Liens 17
14. Insurance 19
15. Representations and Warranties 21
16. Resolution of Disputes, Claims and Other Matters 23
17. Notices 24
18. Successors and Assigns 25
19. Time of the Essence 26
20. Independent Contractor 26
21. No Waiver 26
22. Cooperation 26
23. Counterparts 26
24. Entire Agreement and Order of Precedence 26
25. Governing Law 27
26. Annual Appropriation; Filing With Auditor of Public Accounts 27
27. Financial Statements 27
28. Conditions Precedent and Subsequent to Agreement’s Effectiveness 27
29. Severability 27
30. Conflicts of Interest 27
31. Indemnification 27
32. Exhibits 28
ii
COMPREHENSIVE AGREEMENT
THIS COMPREHENSIVE AGREEMENT (this “Agreement”) is entered into as of January __, 2010, between THE COUNTY OF SOUTHAMPTON, VIRGINIA (“the County”), a County and political subdivision of the Commonwealth of Virginia, and BUNROOTIS, LLC (“Developer”), a Delaware limited liability company. The County and Developer are referred to individually as a “Party” and collectively as “the Parties”.
Recitals
1. On March 28, 2005, the County adopted “Public-Private Education Facilities and Infrastructure Act of 2002 - Procedures for Southampton County, Virginia,” establishing procedures for the development of public facilities through public-private partnerships (“Implementing Procedures”), which procedures satisfy the requirements of the PPEA (as defined below).
2. On August 27, 2009, the County published a solicitation for conceptual phase proposals under the Public-Private Education Facilities and Infrastructure Act of 2002 (Title 56, Chapter 22.1 of the Code of Virginia of 1950 as amended (the “Code”), and such chapter hereinafter referred to as the “PPEA”) for certain site development work associated with development of an industrial park, including compensatory mitigation in the form of forested and emergent wetlands and relocated/restored stream, and development, financing, construction and sponsorship of a wetland and stream mitigation bank (as more fully described hereinafter, the “Project”).
3. On or about September 25, 2009, the County received one response to the solicitation described in Recital 2, from the Developer.
4. On September 28, 2009, the Board of Supervisors adopted a resolution which, among other things, accepted the conceptual phase proposal of the Developer and made findings that it would be advantageous for the County to proceed with the Project using procedures for competitive negotiation, rather than sealed, competitive bids, given the probable scope, complexity and urgency of the Project; the merits of risk-sharing and the potential for added value; and the economic benefit from the Project that might otherwise not be available.
5. After reviewing the Developer’s conceptual phase proposal and, in the absence of any competing proposals, by resolution adopted on October 26, 2009, the County selected the Developer to advance to the detailed review phase in accordance with the Implementing Procedures, retaining the right to reject said proposal at any time for any reason.
6. After reviewing the detailed phase proposal dated November 19, 2009 as submitted by the Developer, by resolution dated November 23, 2009, the County selected the Developer for negotiation of a comprehensive agreement under the PPEA for the Project based upon the conceptual phase proposal and the detailed phase proposal submitted by the Developer and upon the County’s evaluations of those proposals.
7. The Parties have negotiated this Agreement consistent with the PPEA, other applicable law, the Implementing Procedures, the proposals and discussions between representatives of the County and Developer.
8. Having considered this Agreement and other information, the County has determined that the Project to be developed, constructed and operated pursuant to this Agreement serves the public purpose of the PPEA under the criteria of Section56-575.4(C) of the Code.
[agreement continues on following page]
Agreements
NOW THEREFORE, for and in consideration of the mutual promises, conditions and covenants herein set forth, the Parties agree as follows:
1. Incorporation of Recitals.
The foregoing recitals are true and correct and are incorporated herein by reference.
2. Contract Documents.
The Contract Documents are comprised of the following:
a. All written modifications, amendments and change orders to this Agreement; and
b. This Agreement, including all exhibits and attachments hereto.
3. Definitions.
The following definitions apply to this Agreement.
a. “Cheroenhaka Construction Documents” means the sealed plans and specifications prepared by Timmons Group, approved by the County and transferred to the Developer, which the Developer has reviewed and determined to be reasonably suitable for use to develop, construct and operate the Cheroenhaka Wetland and Stream Mitigation Bank, as more particularly listed and described in Exhibit D, attached hereto and incorporated herein.
b. “Cheroenhaka Wetland and Stream Mitigation Bank” means the wetland and stream mitigation bank to be located on approximately 240 acres located off Rose Valley Road, west of the City of Franklin, and adjacent to the industrial park site (the exact location of which is more specifically described on Exhibit D, which the Developer shall lease from the IDA and shall be developed, constructed and operated by the Developer to generate approximately 50.88 wetland credits and approximately 12,379 to 14,427 stream credits, all as more particularly described in Exhibit B.
c. “Compensatory Mitigation Site” means the compensatory mitigation site to be constructed on that part of the Site anticipated to be developed as an industrial park to address impacts caused by such proposed development (the exact location of which is more specifically described on Exhibit C).
d. “Construction Work” means the all the work required of the Developer to develop and construct the Industrial Park Site Grading and the Compensatory Mitigation Site as a turnkey project, as more particularly described in Article 7.
e. “Contract Documents” means those documents listed in Article 2 herein.
f. “Date of Commencement” means the date described in Article 7 herein.
g. “Final Completion” or “final completion” means completion of the Industrial Park Site Grading and the Compensatory Mitigation Site in conformance with the Industrial Park Construction Documents and other Contract Documents, including without limitation, punch list items, but not including warranty items.
h. “Industrial Park Construction Documents” means the sealed plans and specifications prepared for and approved by the County, which the Developer has reviewed and determined to be reasonably suitable for use to perform the Construction Work, as more particularly listed and described in Exhibit C, attached hereto and incorporated herein.
i. “Industrial Park Site Grading” means the portion of the Construction Work necessary to prepare the portion of the Site anticipated to be developed as an industrial park for such future development (the exact location of which is more specifically described on Exhibit C).
j. “Lease” means the lease dated, executed and delivered as of the date of this Agreement, by which the Southampton County Industrial Development Authority (the “IDA”) will lease to the Developer the land on which the Developer shall develop, construct and operate the Cheroenhaka Wetland and Stream Mitigation Bank, which shall be in a form substantially similar to that attached hereto and incorporated herein as Exhibit F.
k. “Mitigation Banking Instrument” means the document to be executed by Developer as the sponsor of the Cheroenhaka Wetland and Stream Mitigation Bank, which shall be in a form substantially similar to that attached hereto and incorporated herein as Exhibit B.
l. “Project” means the construction of the Industrial Park Site Grading and the Compensatory Mitigation Site as a turnkey project and the development, construction and operation of the Cheroenhaka Wetland and Stream Mitigation Bank, as contemplated by the Contract Documents. “Project” includes both the entirety of the Project or a part thereof.
m. “Project Schedule” means that schedule attached hereto as part of Exhibit E, as it may be adjusted pursuant to the Contract Documents.
n. “Site” means the land on which the Cheroenhaka Wetland and Stream Mitigation Bank, the Industrial Park Site Grading, and the Compensatory Mitigation Site will be constructed as described on sheet 7.0 of the documents listed in Exhibit C and sheet 1.2 of the documents listed in Exhibit D.
o. “Substantial Completion,” or “substantial completion,” with respect to the Construction Work shall have the meaning as set forth in Article 7 of this Agreement.
p. “Work” means all of Developer’s development, construction, operation and other services required by the Contract Documents, including but not limited to the Construction Work, and procuring and furnishing all materials, equipment, services and labor reasonably inferable from the Contract Documents.
4. General Scope.
Developer shall perform and provide or cause to be performed and provided, all development, construction and operation services, and provide or cause to be provided all material, equipment, services and labor, necessary to complete the Work, including but not limited to entry into the Lease and both the Construction Work, described in and reasonably inferable from the Industrial Park Construction Documents and the work required to develop, construct and operate the Cheroenhaka Wetland and Stream Mitigation Bank. It is the intent of County and Developer that, unless otherwise specifically set forth in this Agreement, Developer shall perform or provide all development and construction services that are necessary to provide County with a turnkey Project with respect to the Industrial Park Site Grading and the Compensatory Mitigation Site that fully complies with County’s requirements for those parts of the Project as described in this Agreement and in the Industrial Park Construction Documents. With regard to matters concerning the Developer’s performance of its obligations pursuant to this Agreement, the Developer shall not be entitled to rely on any inspection by the County or any of its employees, representatives or consultants and shall remain solely responsible to perform all of its obligations under this Agreement as set forth in this Agreement and in accordance with the applicable standard of care. However, notwithstanding anything herein to the contrary, the Developer shall assume no responsibility for any element of any of the plans, specifications, design or other related services and/or materials furnished by the County or Timmons Group, except that if the Developer observes or becomes aware of any error, omission, inconsistency or deficiency of any kind in such furnished materials, the Developer shall promptly notify the County, with a copy to Timmons Group, of the error, omission, inconsistency or deficiency.
5. Interpretation; Intent and Incorporation.
a. The Contract Documents are intended to be complementary and interpreted in harmony so as to avoid conflict, with words and phrases interpreted in a manner consistent with construction and design industry standards. In the event of any inconsistency, conflict, or ambiguity between or among the Contract Documents, the order of precedence among Contract Documents shall be as provided in Article 2 hereof.
b. Capitalized terms, words and phrases used in the Contract Documents, including this Agreement, shall have the meanings given them in this Agreement and the Exhibits hereto, unless another meaning is clearly intended.
c. In accordance with Article 24 hereof and as more fully provided thereby, the Contract Documents form the entire agreement between County and Developer. No oral representations or other agreements have been made by the Parties except as specifically stated in the Contract Documents.
6. Ownership of Work Product.
a. Work Product. All drawings, specifications and other documents and electronic data furnished by County to Developer in connection with this Project (collectively, the “Work Product”) are deemed to be instruments of service and the ownership and property interests therein, including the copyrights thereto, shall be as set forth in any agreements that the County entered to procure their production. The Work Product shall include, but not be limited to, the Industrial Park Construction Documents and the Cheroenhaka Construction Documents. The Developer shall not have any rights of ownership in the Work Product.
b. Grant of License to Work Product. In connection with its Work under this Agreement on the Project, Developer shall have a limited license to use and reproduce (and to allow its general subcontractor and other subcontractors to use and reproduce) the Work Product, but only as necessary to its development, construction and operation of the Project. Developer shall not have the right to, and Developer covenants and agrees that Developer will not, transfer to any other person for use in connection with any other project Developer’s limited license to use and reproduce the Work Product in connection with its development, construction and operation of the Project. This limited license shall terminate upon completion of all of the Work required under this Agreement or any termination of this Agreement, whichever may occur first; if the Agreement is terminated with respect to only a portion of the Work, then the limited license shall terminate with respect to only the Work Product applicable to such Work. With respect to the portion of the Work Product consisting of the Cheroenhaka Construction Documents, the limited license described herein shall be subject to payment by the Developer to the County of a use fee of Ten Thousand and no/100 Dollars ($10,000.00) prior to any use of the Cheroenhaka Construction Documents.
7. Construction of the Industrial Park Site Grading and Compensatory Mitigation Site.
a. The Developer shall construct, or cause to be constructed, the Industrial Park Site Grading and Compensatory Mitigation Site as a turnkey project, in accordance with the Industrial Park Construction Documents, and in full compliance with all applicable laws, ordinances, regulations (including, but not limited to, those of the Virginia Department of Environmental Quality) and applicable permits.
b. The County, its employees, representatives and consultants, including, but not limited to, its independent engineer, Timmons Group, shall be afforded reasonable access to the Project to ensure that the Developer’s activities are acceptable to the County and the Industrial Park Site Grading and the Compensatory Mitigation Site are being performed in accordance with this Agreement and the Contract Documents, so long as such access does not interfere with the Developer’s performance of the Work or other permitted activities.