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Home My Public Portal About2011_12_13_R152 Leesburg Central Cost Sharing AgreementlThe Town of Leesburg, Virginia. RESOLUTION NO. 2011 -152 PRESENTED December 13, 2011 ADOPTED December 13, 2011 A RESOLUTION: AUTHORIZING THE TOWN MANAGER TO EXECUTE A COST - SHARING AGREEMENT BETWEEN THE TOWN AND A &W LEESBURG CENTRAL, LLC, FOR THE CONSTRUCTION OF FRONTAGE IMPROVEMENTS REQUIRED BY THE DOWNTOWN IMPROVEMENT PROJECT AT THE SOUTHEAST CORNER OF LOUDOUN AND HARRISON STREET WHEREAS, as part of the Town's Downtown Improvement Project ( "DIP "), frontage improvements are needed at the southeast corner of Loudoun and Harrison Streets; and WHEREAS, the developer of project known as "Leesburg Central ", A &W Leesburg Central, LLC ( "A &W "), is currently developing the site which includes proffered improvements also at the southeast corner of Loudoun and Harrison Streets; and WHEREAS, in order to expedite the construction of this portion of the DIP, reduce costs for construction of this portion of the DIP, and reduce the duplication of efforts by the Town and the developer, the Town and the A &W have entered into a Leesburg Central Cost - Sharing Agreement ( "Agreement "); and WHEREAS, the Agreement provides, inter alia, that A &W will revise its Site Plan to incorporate the Town's DIP frontage improvements; and WHEREAS, the Agreement provides, inter alia, that A &W will construct the Town's DIP frontage improvements while constructing its proffered improvements to the southeast corner of Loudoun and Harrison Streets; and WHEREAS, the Agreement provides that A &W will design and construct the DIP improvements for an amount not to exceed One Hundred Twenty Thousand Dollars ($120,000.00); and WHEREAS, the aforementioned price for the cost of the DIP improvements is anticipated to Ira A RESOLUTION: AUTHORIZING THE TOWN MANAGER TO EXECUTE A COST - SHARING AGREEMENT BETWEEN THE TOWN AND A &W LEESBURG CENTRAL, LLC, FOR THE CONSTRUCTION OF FRONTAGE IMPROVEMENTS REQUIRED BY THE DOWNTOWN IMPROVEMENT PROJECT AT THE SOUTHEAST CORNER OF LOUDOUN AND HARRISON STREET save the Town approximately Thirty Five Thousand Dollars ($35,000) in construction costs; and WHEREAS, the Agreement also provides that the Town Manager is authorized to review and authorize change orders for additional payment if A &W encounters unforeseen circumstances relating to underground conditions or unsuitable soils which are specifically related to the DIP. THEREFORE, RESOLVED, by the Council of the Town of Leesburg in Virginia that the Town Manager is authorized to execute the proposed "Leesburg Central Cost - Sharing Agreement ", in a form approved by the Town Attorney, and to authorize any change orders on behalf of the Town. PASSED this 13th day of December, 2011. ZI II >< C. mstattd, Mayor Town of Leesburg ATTEST: Clerk o nc'1 PA\Resolutions\Resolutions 2011 \1213 Leesburg Central Cost Sharing Agreement.docx LEESBURG CENTRAL COST - SHARING AGREEMENT THIS AGREEMENT, made this,) day of 2011, by and between the TOWN OF LEESBURG, VIRGINIA, a municipal corporation, (hereinafter "Town ") and A &W LEESBURG CENTRAL, LLC, a Virginia limited liability company, (hereinafter "A &W "). WITNESSETH: WHEREAS, in October of 2011, A &W entered into a PC 2 Contract with the Town and posted. the required guarantees to develop and construct certain commercial buildings and public improvements known as the "Leesburg Central Project" located in the Town of Leesburg at 201 Loudoun Street, SE, Leesburg, Virginia, PIN 231 -39 -0909; and WHEREAS, the design and development of the Leesburg Central Project is more particularly shown on the Preliminary /Final Development Plan dated July 2, 2004, last revised February 3, 2006, and approved by the Town of Leesburg in compliance with Rezoning Application ZM 2003 -06, adopted by Ordinance No. 2004 -0 -3, and subsequent Concept Plan and Proffer Amendment Application ZM 2010- 0001, adopted by Ordinance No. 2010 -0 -024 (the "Preliminary /Final Development Plan "); WHEREAS, in connection with the development of the Leesburg Central Project and pursuant to the current plans and proffers as a result of the rezonings listed above, A &W is required to make certain improvements to the southeast corner of Harrison Street and Loudoun Street, the sidewalks adjacent thereto, and other frontage improvements, as more particularly described on the Preliminary/Final Development Plan dated. July 2, 2004, revised through February 3, 2006, attached hereto as "Exhibit A" (the "Leesburg Central Improvements "); Page 1 WHEREAS, at or around the same time A &W is contemplating the Leesburg Central Improvements, the Town is about to commence construction of certain improvements to the south side of Loudoun Street (in the area from S. King Street to E. Market Street) and Harrison Street as part of the Town's capital improvement project called the "Downtown Improvement Project" (the "Town Improvements "). A &W has incorporated the Town Improvements into a Site Plan entitled, "Leesburg DIP" dated December 9, 201.1, prepared by Pacuilli Simmons & Associates which Plan is attached hereto and incorporated herein as "Exhibit B"; WHEREAS, the Town Improvements and the Leesburg Central Improvements each contemplate similar improvements to the southeastern corner of Loudoun Street and Harrison Street; WHEREAS, in order to take advantage of the efficiencies associated with constructing the Leesburg Central Project and the Town Improvements as a single project at this intersection, and to avoid the unnecessary expense of the potential demolition of these improvements if such projects were undertaken separately, it is the intent of the Town and A &W to enter into this Leesburg Central Cost - Sharing Agreement ( "Agreement ") to provide for the coordinated design and construction of the intersection as a single project (hereinafter referred to as the "Loudoun/Harrison Frontage Improvements "); WHEREAS, the Town Council shall authorize the Town Manager to execute this Agreement with A &W for the coordinated construction and cost - sharing of the Loudoun/Harrison Frontage Improvements on behalf of the Town as well as any change orders that may occur as a result of the circumstances set forth in Paragraph 6 below. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties agree as follows: Page 2 1. A &W has agreed to revise its current Site Plan for the Leesburg Central Project to incorporate the design and construction of the Town's Improvements as evidenced by Exhibit B. 2. A &W and the Town agree that the time schedule for submission and approval of all drawings related to the Loudoun /Harrison Frontage Improvements will be mutually agreed upon by A &W and the Town. A &W will construct the Loudoun/Harrison Frontage Improvements according to a Final Approved Site Plan, per Town regulations. 3. The Town agrees to waive all review fees. 4. The Loudoun/Harrison Frontage Improvements will be designed by Pacuilli Simmons & Associates and constructed by a known and reputable contractor licensed in Virginia and retained by A &W in substantial conformance with the plans prepared by Pacuilli Simmons & Associates and approved by the Town. 5. Even though A &W's construction of the Loudoun/Harrison Frontage Improvements is not subject to the Virginia Public Procurement Act, A &W shall competitively bid the Loudoun /Harrison Frontage Improvements to two (2) to three (3) known and reputable subcontractors. 6. The Town will reimburse A &W an amount not to exceed One Hundred Twenty Thousand Dollars ($120,000.00) for the Loudoun/Harrison Frontage Improvements. Change Orders for additional payment may be submitted by A &W only for unforseen underground circumstances or costs associated with unsuitable soils which are directly related to the Loudoun/Harrison Frontage Improvements (and not the Leesburg Central Improvements), but the Town shall have the right to review the aforementioned conditions and all change orders must be reviewed, agreed to, and approved in writing by the Town Manager. Page 3 7. All work shall comply with the Town's Design and Construction Standards Manual. 8. The Town, its agents and /or employees will conduct regular, periodic inspections of the work conducted on the Loudoun/Harrison Frontage Improvements. 9. During construction of the Loudoun /Harrison Frontage Improvements, A &W shall be reimbursed by the Town in the following installments so long as A &W has submitted the proper invoices: o $25,000 at approval of the Site Plan; o $50,000 at 50% completion of the project. The Town shall determine the progress of completion. o $45,000 at the completion of the project. The Town shall determine whether the project is complete. Change orders shall be submitted to the Town for review as soon as any unforseen circumstance as defined in Paragraph 6 occurs. 10. The Town shall have a reasonable time to review all invoices and shall reimburse A &W as soon as practicable and in accordance with Town policy, not to exceed thirty (30) days. 11. A &W shall provide the Town with a releases of lien from the general contractor, prior to the Town making final payment to A &W. 12. In accordance with the PC 2 Contract previously executed by A &W, A &W warrants and guarantees to the Town that all work associated with the Loudoun /Harrison Frontage Improvements will be in substantial accordance with the revised Site Plan and Town design and construction standards, be completed in a workmanlike manner and will not be Page 4 defective for a period of time extending for one year from the actual date of acceptance of such improvements by the Town. 13. In accordance with the PC 2 Contract previously exectued by A &W, A &W will repair or replace or require its Contractor to repair or replace defective materials and workmanship associated with the Loudoun/Harrison Frontage Improvements, at no cost to the Town, for a period of time extending for one year from the actual date of acceptance of such improvements by the Town. A &W shall provide the Town with as -built plans acceptable to the Town, and all inspection reports and testing certifications. 14. The Town and A &W agree that construction and completion of the Loudoun/Harrison Frontage Improvements is intended to coincide with A &W's Leesburg Central Project. A &W anticipates completion of the Leesburg Central Project on or around March 1, 2012. 15. A &W agrees to notify its General Liability Insurance carrier of the work contemplated in this Agreement and submit to the Town an updated Certificate of Liability Insurance. 16. This agreement may be amended only by the written consent of both parties. 17. This agreement shall be binding on all parties and their successors and assigns. 18. This agreement may not be assigned by A &W without the prior written consent of the Town. 19. The Town and A &W shall not be considered partners, and there shall be no third party beneficiaries of this agreement. 20. The parties warrant that the signatories below have authority to execute this Agreement on behalf of the Town and A &W. Page 5 21. The parties agree that this Agreement will be governed by the laws of the Commonwealth of Virginia and any dispute that may occur as a result of the terms of this Agreement shall be brought in the courts of Loudoun County. Witness the following signatures and seals. Date: Date: Approved as to form: Town Attorney A &W LEESBURG CENTRAL, a. Virginia Limited Liability Company By ; / , ' ' [SEAL] I el' evin Ash Title Managing Member TOWN OF LEESBURG, VIRGINIA �aq By: [SEAL] Name: John Wells Title: Tox n Manager Page 6 EXHIBIT A Leesburg Central Preliminary/Final Development Plan Page 7 EXHIBIT B "Leesburg DIP" dated December 9, 2011, prepared by Pacuilli Simmons & Associates Page 8 a��4�'� " � � t 1 �•bl � ti ,t I p f 1 ?. 1 a�. r i(fM1Yh yl 11 d E t ii.:Sp bhONT A i MAC t ' Nd]ii )rte Try t: 0, 1� °`'s�laa4 s�.5ilt7Ai!.wh�(u■�i y��e Xrs��1 kl t+�Fu ��;,, alp .�Wl.G9.,i a +h .'� �� nli lirto4y� -ti °. a a I