HomeMy Public PortalAbout2015_03_24_R040 Lower Sycolin SSCS Agreement with Peterson as Sole Source Procurement The Town of
Leesburg,
Virginia
PRESENTED March 24, 2015
RESOLUTION NO. 2015-040 ADOPTED March 24, 2015
A RESOLUTION: AUTHORIZING THE EXECUTION OF AN AGREEMENT BETWEEN
THE TOWN OF LEESBURG AND PETERSON COMPANIES FOR
CONSTRUCTION OF PHASE II GRAVITY SANITARY SEWER MAIN
OF THE LOWER SYCOLIN CONVEYANCE SEWER SYSTEM; AND
AUTHORIZING A SOLE SOURCE PROCUREMENT FOR THE
CONSTRUCTION OF PHASE II LOWER SYCOLIN GRAVITY MAIN
AND AUTHORIZING THE TOWN MANAGER TO PROCURE THESE
SERVICES
WHEREAS, the Town of Leesburg ("the Town") owns and operates a wastewater
treatment plant; and
WHEREAS,the Lower Sycolin Creek Sewage Conveyance System is a Capital
Improvement Project("the Project")that will result in a gravity sanitary sewer line that runs from
the Town's Lower Sycolin Pump Station across Sycolin Road to the southern property line of
Compass Creek near the Leesburg Executive Airport; and
WHEREAS,the Project has been divided into two (2)phases; Phase I has been completed
with the construction of a pump station and gravity force main and currently serves properties in a
portion of the Lower Sycolin Sewershed("the Sewer shed"); and
WHEREAS, Phase II will serve the remaining properties in the Sewershed identified with
the 2002 Lower Sycolin Creek Sewer Shed Study; and
WHERAS, the Town has acquired the permanent and temporary easements that are
necessary for the construction of the Phase II gravity sanitary sewer line; and
WHEREAS,the Peterson Companies ("Peterson")currently owns a majority of the land in
the Phase II portion of the Sewer shed; and
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A RESOLUTION: AUTHORIZING THE EXECUTION OF AN AGREEMENT BETWEEN
THE TOWN OF LEESBURG AND PETERSON COMPANIES FOR
CONSTRUCTION OF PHASE II GRAVITY SANITARY SEWER MAIN
OF THE LOWER SYCOLIN CONVEYANCE SEWER SYSTEM; AND
AUTHORIZING A SOLE SOURCE PROCUREMENT FOR THE
CONSTRUCTION OF PHASE II LOWER SYCOLIN GRAVITY MAIN
AND AUTHORIZING THE TOWN MANAGER TO PROCURE THESE
SERVICES
WHEREAS, Peterson has requested from the Town an opportunity to construct the sewer
gravity sewer for Phase II in order to have sanitary capacity readily available for their
development at Compass Creek(formally Crosstrail); and
WHEREAS,the construction contract of the Phase II portion of the Project is subject to
the Virginia Public Procurement Act("VPPA"); and
WHEREAS, Code of Virginia, § 2.2-4303(E) of the VPPA allows for sole source
procurement if there is only one source "practicably available"; and
WHEREAS,the Town and Peterson have negotiated a Construction Agreement whereby
Peterson will construct the Phase II portion on the Project while being reimbursed by the Town,
along with further terms that are beneficial to the Town; and
WHEREAS, there will be no negative impact on operation of the Town's water or
wastewater treatment plants; and
WHEREAS, the Town will receive Pro-Rata fees to recover the cost of Phase I & II of the
project when properties are developed within the Lower Sycolin Sewershed; and
WHEREAS, the Town will receive revenue from out of town sewer users for the majority
of the properties developed within the Lower Sycolin Sewershed.
THEREFORE, RESOLVED, by the Council of the Town of Leesburg, Virginia as follows:
SECTION I. The Town Manager is hereby authorized to execute the final Agreement in a
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A RESOLUTION: AUTHORIZING THE EXECUTION OF AN AGREEMENT BETWEEN
THE TOWN OF LEESBURG AND PETERSON COMPANIES FOR
CONSTRUCTION OF PHASE II GRAVITY SANITARY SEWER MAIN
OF THE LOWER SYCOLIN CONVEYANCE SEWER SYSTEM; AND
AUTHORIZING A SOLE SOURCE PROCUREMENT FOR THE
CONSTRUCTION OF PHASE II LOWER SYCOLIN GRAVITY MAIN
AND AUTHORIZING THE TOWN MANAGER TO PROCURE THESE
SERVICES
form acceptable by the Town Attorney for construction of the gravity sanitary sewer main project
for Phase II of Lower Sycolin Creek Sewage Conveyance System with the Peterson.
SECTION II. The Town Council determines that only one source is practicably available
for the procurement of the construction of the Phase II Lower Sycolin Creek Sewage Conveyance
System and directs that this Resolution be posted on the public notice board in the town offices for
a period of ten(10) days.
SECTION III. The Town Manager is hereby authorized to execute and procure the sole
source construction of Phase II of Lower Sycolin Creek Sewage Conveyance System from the
Peterson.
PASSED this 24th day of March,2015.
Kristen C. U stattd, Mayor
Town of Leesburg
AT
Clerk of Co
P:\Resolutions\2015\0324 Lower Sycolin Sewer Agreement and Sole Source Procurement.doc
AGREEMENT FOR THE CONSTRUCTION OF PHASE II LOWER SYCOLIN
GRAVITY MAIN
THIS AGREEMENT FOR THE CONSTRUCTION OF PHASE H LOWER SYCOLIN
GRAVITY MAIN (this "Agreement") is entered into this 241 day of March, 2015 (tbe
"Effective Date"), by and between THE PETERSON COMPANIES, L.C., a Virginia limited
liability company ("Peterson") and the TOWN OF LEESBURG, a Virginia municipal
corporation (the "Town"). Peterson and the Town are collectively referred to herein as the
"Parties."
RECITALS:
WHEREAS, the Town authorized the construction of the Lower Sycolin Sanitary Sewer
Conveyance System(the"System") and established a pro rata fee structure for reimbursement in
2005, as contained in Leesburg Town Council Resolution No. 2005-182 (the "Phase I
Resolution"). The Town constructed and placed Phase I of the System into operation on
December 17,2013;and
WHEREAS, on March 24, 2015, the Town Council revised the pro rata fee structure
previously authorized by the Town Council in the Phase I Resolution to reflect an adjusted and
updated pro rata based upon re-zonings,development and actual construction costs for Phase I of
the System, as set forth in Exhibit A; and
WHEREAS, on March 24, 2015, the Town Council reviewed and approved Resolution
No.'s 2015-039 and 2015-040, as set forth in Exhibit A (collectively,the"Phase II Resolution"),
which (a) authorized Peterson to undertake the construction of Phase II of the System and (b)
established a pro rata fee structure for reimbursement of the construction costs of Phase II of the
System,based on the currently anticipated development,approved re-zonings for the sewer shed
and construction costs;and
WHEREAS, the geographic area to be served by Phase H of the System is comprised of
three geographic portions, (a)the Crosstrail Northern Area, (b) the Crosstrail Southern Area and
(c)certain Unassigned Areas,as shown more particularly on Exhibit B;and
WHEREAS, the pro rata fee structure established pursuant to the Phase H Resolution
maybe revised by the Town if land use changes within the sewer shed as a result of future re-
zonings,development and construction costs; and
WHEREAS, affiliates of Peterson are the owners and developers of the Crosstrail
Development(the"Development"),which is located within the Town's sewer service area and is
located at the cnd of the planned System;and
WHEREAS, the completion of Phase II of the System is necessary for the Development
to be served by the Town's sanitary sewer System; and
WHEREAS, Peterson is uniquely positioned to efficiently construct the completion of
Phase II of the System(the"Work")in connection with the construction of the Development as a
sole source procurement;and
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WHEREAS, Peterson has agreed complete the Work, subject to reimbursement for the
costs associated with the Work by the Town;and
WHEREAS, the Town and Peterson have completed and agreed upon the plans for the
completion of the Phase H of the System; and
WHEREAS, the Town and Peterson have agreed (i) for Peterson to complete the Work
for the fixed price of FOUR MILLION US DOLLARS (US $4,000,000.00) (the "Fixed Price")
and (ii) for the Town to reimburse Peterson for such completion costs as set forth in this
Agreement; and
WHEREAS, the Town and Peterson desire to set forth in this Agreement the terms and
conditions by which Peterson will perform the Work and be reimbursed by the Town for doing
so.
NOW, THEREFORE, WITNESSETH: the Recitals set forth above being incorporated
herein by reference, in consideration of the foregoing and the mutual undertakings and covenants
contained herein, the Town and Peterson, each pursuant to due and proper authority, do hereby
agree as follows:
1. System Plans.Permitting and Approval Process
1.1.Peterson shall construct Phase II of the System and perform the Work in accordance
with the Design and Construction plans, easement plats and/or reports for Phase II
of the System as shown on the Dewberry plans dated February 17, 2015(the"Phase
H Plans"). Phase II of the System was designed by Dewberry, and any references to
"Engineer" in this Agreement or any exhibits hereto shall mean: Dewberry. The
Town shall deliver CAD files for Phase H Plans.
1.2. Phase II Plans are designed to accommodate the sewer flows shown on Exhibit"D".
Exhibit D shall be subject to revision following the Effective Date hereof in the
event that sewer flows are greater or lesser than the flows set forth on Exhibit "D"
hereto. Under no circumstance shall the Phase II Plans be changed to accommodate
different sewer flows other than those shown on Exhibit "D" after the Effective
Date.
1.3.The Town warrants the accuracy and adequacy of the Phase H Plans as i) being in
compliance with all regulatory requirements imposed by local, state and federal
regulatory agencies, and ii)being sufficient to accommodate the Town's anticipated
sewer capacity as shown on Exhibit "D". The cost of any changes required to the
Phase II Plans as a result of errors and/or omissions are not included in the Fixed
Price. The Fixed Price shall be adjusted by mutual agreement of the Parties to
correct such error and/or omission.
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1.4. Permits and Regulatory Approvals
1.4.1. The Town shall be the applicant for all required regulatory permits and approvals
(collectively the "Permits") and is responsible for obtaining all necessary Permits
including,but not limited to:
1.4.1.1. Loudoun County Grading Permit_
1.4.1.2. DEQ Certificate to Construct.
1.4.13. Wetland,Stream Impact and similar Permit(s).
1.4.1.4. VDOT Right-Of-Way Permit(s).
1.4.2. The Town will be responsible for any and all Permit application costs and fees in
connection with the Permits and any mitigation required as a condition of said
Permits. The Town will provide Peterson with notification of each Permit
submission,and a copy of the approved Permits when received.
1.43. Following the submission of applications for the Permits, the Town will use
reasonable efforts to obtain such Permits in a timely fashion. The Town
estimates, but does not guarantee, receipt of all necessary Permits on or about
April 15, 2015; provided, that the Loudon County Grading Permit and the VDOT
Right-of Way Permits must be obtained by May 1,2015.
2. Easements
2.1. The Town will make reasonable efforts to acquire any and all necessary easements
for access to, construction of and maintenance of Phase II of the System by May 1,
2015, including easements on the Koski Parcel as shown on Exhibit E. If the Town
cannot acquire the easements with the cooperation of the property owners, it will
initiate the process to acquire the easements by eminent domain quick take no later
than May 1,2015.
2.2. Peterson will be responsible for any mitigation credit payment required due to any
work performed by it or its contractors which is outside of the easement areas and
not included in the Phase II Plans.
2.3. Peterson will assist the Town in its efforts to acquire any necessary easements
needed from Loudoun County for the construction of Phase 11 of the System. Such
assistance shall be limited to lobbying and negotiating with County staff. Under no
circumstance will Peterson be required to make any financial contribution or
payment to acquire such easements.
2.4. Peterson will provide the necessary easements for providing sewer service on its
property,at no cost to the Town,for the terminus manhole and any associated pipe.
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3. Performance of the Work
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3.1. The Town and Peterson hereby agree that Peterson will perform the Work and reach
Final Completion by a date certain as set forth herein (unless and to the extent that
such failure to reach Final Completion is delayed due to a Force Majeure Event or
the actions or inactions of the Town).
3.2. Peterson hereby agrees to perform form the Work in strict accordance with:
3.2.1. This Agreement;
3.2.2. The Permits;
3.23. The Phase II Plans;
3.2.4. The Town's Design and Construction Standards Manual("DCSM");
3.25. The Specifications for the Work;and
3.2.6. Any other documents referenced in this Agreement.
The foregoing documents are hereby deemed the"Contract Documents".
3.3. The Parties acknowledge and agree that Peterson shall coordinate the Work with the
construction of the reclaimed water line by the owner of the natural gas-fired
electrical power generation facility(the"Power Plant"),which is to be developed on
certain property consisting of approximately 101 acres located south of the Town's
corporate limits. Without limiting the above, Peterson shall coordinate the Work with
any overblasting performed by the Town and/or the Power Plant owner with respect to
the construction of a reclaimed water line between the Town's wastewater treatment
facility and the Power Plant
3A. Documents and Submittals.
3.4.1. Peterson shall maintain, and at all times make available to the Town, one
record copy of all drawings,specifications, addenda, change orders and other
modifications thereto, in good order and marked currently to record all
changes made to the Phase II Plans during the performance of the Work.
3.4.2. Peterson shall submit with reasonable promptness and in such sequence as to
cause no delay in the performance of the Work, all shop drawings, product
data, manuals, samples mock-ups and such other submittals (the "Submittal
Documents") to the Town. The Town shall have right to review all such
Submittal Documents and provide comments to Peterson based on such
review within fifteen (15) days; provided, however, that any review and
comment of such Submittal Documents by the Town does not constitute
approval of such documents or otherwise relieve Peterson from its
obligations to perform the Work in accordance with the Contract Documents.
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If the Town does not comment on the Submittal Documents within fifteen
(15)days,they will be deemed approved by the Town.
3.5. Schedule Phase II Final Acceptance Date. Subject to the issuance of the Notice
to Proceed by June 1, 2015, Peterson shall complete the Work and Phase II of the
System shall be ready to receive sewer flows no later than June 30, 2016, as such
date may be extended pursuant to the terms hereof, including the occurrence of a
Force Majeure Event.
3.6. Town's Right to Stop or Suspend Work.
3.6.1. If Peterson fails to correct defective Work as required by this Article 3 or
fails to carry out the Work or supply labor and materials in accordance with
the Contract-Documents, the Town by written order may order Peterson to
stop the Work, or any portion thereof, without monetary compensation to
Peterson until the cause for such order has been eliminated.
3.6.2. The Town may order Peterson in writing to suspend, delay,or interrupt all
or any part of the Work for such period of time as it may determine to be
appropriate for the convenience of the Town. If the Town stops or suspends
the Work; i) the time for completion of the Work shall be extended
accordingly; and ii) the Town shall be responsible for the increase in costs
from the stoppage or delay.
3.6.3. If the performance of all or any part of the Work is suspended,delayed, or
interrupted by the Town for fifteen(1 5)days,or by failure of either of them to
act within the time specified (or if no time is specified, within a reasonable
time), an adjustment increasing the time of performance of the Work shall be
made. Such adjustments will be made solely for any suspension, delay, or
interruption over fifteen (15) days. The Agreement shall be modified in
writing accordingly. However, no claim for an extension of time shall be
made under this Paragraph 3.6.3 for any suspension, delay, or interruption
pursuant to Paragraph 3.7.1, or for which claim is provided or excluded under
any other provision of this Agreement.
No claim under this Paragraph 3.6.3 shall be allowed for any claim for an
extension of time required for performance, unless within twenty days after
the act or failure to act involved, Peterson submits to the Town a written
statement setting forth, as then practicable, the extent of such claimed time
extension and unless the claim for an extension of time is submitted with
supporting data within thirty days after the termination of such suspension,
delay,or interruption.
3.6.4. In thc event of a suspension of work or delay or interruption of work
pursuant to Section 3.6.1, Peterson will protect carefully its materials and
work against damage from the weather and maintain completed and
uncompleted portions of the work as required by the Contract Documents. If
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suspension of Work is due to Section 3.6.2, then the Town shall pay costs to
protect materials. If; in the reasonable opinion of the Town, any work or
material shall have been damaged by reason of failure on the part of Peterson
to protect same, such work and materials shall be removed and replaced at the
expense of Peterson.
3.65. No claim by Peterson under Paragraph 3.6.3 shall be allowed if asserted
after final payment under this Agreement.
3.7. Town's Right to Carry Out Work
3.7.1. If Peterson defaults or neglects to carry out the Work in accordance with
the Contract Documents and fails within a thirty (30)day period after receipt
of written notice from the Town to commence and continue correction of such
default or neglect with diligence and promptness, the Town may after the
thirty (30) day period give Peterson a second written notice to correct the
deficiencies within a three day period. If Peterson fails to commence and
continue to correct any deficiencies within the second notice's three day
period, the Town may, without prejudice to other remedies the Town may
have, correct such deficiencies. In such a case an appropriate Change Order
shall be issued pursuant to Article 5 deducting from the payments then or
thereafter due Peterson the cost of correcting such deficiencies, including
compensation for services of the Town, the engineer and any other additional
services made necessary by such default, neglect or failure. If the payments
then or thereafter due Peterson are not sufficient to cover such amount,
Peterson shall pay on demand the difference to the Town.
3.7.2. The Town will not be liable or accountable to Peterson for the method by
which the Work, or any portion thereof, performed by the Town or by
separate contractors pursuant to Paragraph 3.7.1 is accomplished or for the
price paid therefor.
4. Time for Completion of the Work
4.1. Notice to Proceed. Upon satisfaction of the conditions set forth below, as
determined by the Town in the exercise of its commercially reasonable judgment,
the Town shall issue a "Notice to Proceed" to Peterson to commence the
construction of Phase II of the System and the balance of the Work:
4.1.1. Issuance of all required governmental approvals and Permits; provided,however,
that the Town's receipt of the VDOT Right-Of-Way Permits shall not be required to
commence performance of the Work and the Town may issue the Notice to Proceed
prior to the receipt of the VDOT Right-Of-Way Permits. If receipt of the VDOT
Permits is delayed past May 31,2015, Peterson shall receive a day for day extension
to complete the Work.
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4.1.2. Acquisition of all required easements;
4.1.3. Execution of any agreements with respect to the coordination of the Work
between Peterson and the Power Plant referenced in Paragraph 3.3; and
4.1.4. Completion of the pre-construction conference between the Town and
Peterson representatives.
4.2. Peterson Termination Right. If the Notice to Proceed is not issued by June 1,
2015, then Peterson will have the option of terminating this Agreement, in
accordance with Paragraph 14.1.1.
4.3. Time of the Essence
4.3.1. All time limits in this Agreement are of the essence.
4.3.2. Contract Time
4.3.2.1. The Work shall be commenced after issuance of the Notice
to Proceed, and Peterson shall complete the Work and notify the Town
of completion within three hundred sixty-five (365) calendar days of
the date of the Notice to Proceed ("Substantial Completion").
43.2.2. Peterson shall address any Town comments or issues with
the Work in order to achieve Phase II Final Acceptance within thirty
(30) days of receiving the Town's comment in accordance with the
process set forth in Article 8 below.
4.4.Release of Bonds. Upon the date of Phase 11 Final Acceptance, Peterson shall
apply to the Town Council for the release the Performance and Payment Bond
posted by Peterson or its contractor,in accordance with Paragraph 18.1.
5. Changes in the Work
5.1. In the event that unforeseen circumstances arise, the parties may mutually agree
upon a change in the work ("Change in the Work"). Any Change in the Work shall
be documented by a written change order (a "Change Order"). Any necessary
changes in the contract time or the cost of the work shall be memorialized in such
Change Order.
5.2. Peterson shall proceed in accordance with such mutually agreed upon Change
Order. Provided, however, that Peterson shall not begin work on any alteration
requiring a modification until such modification has been executed by the Town and
Peterson.
6. RESERVED
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7. Force Maieure and Excuse from Performance by Governmental Acts
7.1. The respective duties and obligations of the Parties shall be suspended while and as
long as performance is prevented or impeded by strikes, disturbances, riots, fire,
severe weather, government action(excluding action of the Town),war acts,acts of
terrorism, acts of God or any other cause similar or dissimilar to the forgoing that
are beyond the reasonable control and not due to the fault or negligence of the party
from whom the affected performance was due("Force Majeure Event").
7.2. In the event that a Force Majeure Event prevents the affected party from performing
its duties and obligations for a period of ninety (90) consecutive days, the non-
affected party shall have the right to terminate this Agreement upon thirty(30)days
prior written notice to the affected party, unless the affected party cures the Force
Majeure Event and commences performance within such notice period.
7.3. If for any reason prior to the issuance of the Notice to Proceed, local (excluding the
Town), state, or federal governments or agencies fail to issue necessary permits, fail
to grant necessary approvals, or require any substantial change in the design or
scope of Phase II of the System, then this Agreement may be terminated by either
Party.
8. Completion of the Work;Phase II Final Acceptance
8.1. Final Completion of the Work.
8.1.1. Upon receipt of the documentation required by Paragraph 8.1.2, and of
written notice that the Work is ready for final inspection and acceptance, the
Town will promptly make such inspection and, when it determines that the
Work acceptable under the Contract Documents and the Agreement is fully
performed, the Town will issue a Certification of Final Completion to
Peterson. The date that the Town issues the Certificate of Final Completion to
Peterson shall be deemed`Phase lI Final Acceptance."
8.1.2. The Town shall not be required to release any retainage amounts held
pursuant to Paragraph 9.2.2 until (a) the Work is free and clear of any and all
liens and(b)Peterson submits the following to the Town:
8.1.2.1. An affidavit by the General Contractor that all payrolls, bills for
materials and equipment and other indebtedness connected with the
Work for which the Town may in any way be responsible, have been
paid or otherwise satisfied;
8.1.2.2. As-Built Documents, O&M manuals and other project closeout
submittals,as requirement by the Contract Documents;
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8.1.2.3. A fully executed and notarized release of claims in such form as
may be designated by the Town, and a written certification that: (a)
Peterson has reviewed the requirements of the Contract Documents; (b)
the Work has been inspected by Peterson for compliance with all
requirements of the Contract Documents; (c) the Work complies in all
respects with the requirements of the Contract Documents; and (d) all
systems have been installed and tested in accordance with the Contract
Documents.
8.2. Phase II Final Acceptance. Following Phase 11 Final Acceptance, pursuant to
Paragraph 8.1.1, and the Town's payment to Peterson of the Fixed Price amount
then due and owing pursuant to Paragraph 9.2, Peterson shall convey to the Town
all of its right, title and interests in and to the Phase II facilities, including, but not
limited to,As-Built Documents and O&M manuals.
9. Reimbursement of Fixed Price Costs
9.1. Pursuant to the Phase II Resolution, the Town shall reimburse Peterson the Fixed
Price for construction costs of Phase II as follows:
9.2. Partial Fixed Price Payment. During the performance of the Work, the Town
shall reimburse Peterson a total of $2,584,881 of the total Fixed Price for
constructing Phase 11 of the System. The reimbursement amount set forth in this
Paragraph 9.2 shall be paid as follows:
9.2.1. Progress Payment Structure. The Town and Peterson agree that the
Peterson may perform the Work in segments, each a "Milestone." For the
avoidance of doubt, achievement of a Milestone segment identified in
Paragraph 9.2.3 does not constitute acceptance of the Work, in whole or in
part.
9.2.1.1. When Peterson determines that a Milestone has been achieved,
Peterson shall deliver to the Town an invoice for reimbursement of the
amount associated with such Milestone, as identified in Paragraph 9.2.3
hereof(each, a"Milestone Payment"). Each invoice shall be in a form
as agreed to by the Parties and shall include such documentation as the
Town may reasonably require to confirm that the Milestone was
achieved.
9.2.1.2. Following receipt of an invoice, the Town will have 10 business
days to review each invoice and, at the Town's discretion, inspect the
progress of the Work,to confirm that the Milestone was achieved.
9.2.1.3. If any Milestone Payment invoice is deemed deficient in any
material respect by the Town, Peterson will have 30 business days after
receipt of the Town's deficiency notice to correct such deficiencies and
to resubmit such invoice for payment. If any remaining or additional
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deficiencies are noted by the Town, the above process will repeat until
the deficiencies are corrected.
9.2.2. Payment Retainage. For each Milestone Payment made pursuant to
Paragraph 9.2.1, the Town shall withhold and retain five percent (5%)of each
such payment amount until the date Phase II Final Acceptance is established
pursuant to Paragraph 8.1.
9.2.3. Identification of Milestones. The Milestones for each segment of Phase
II of the System are as follows (for the avoidance of doubt, the Milestones
may be completed in such order as Peterson may reasonably determine):
Section 1 —Manhole 1 to Manhole 12(2,936 LF)=$669,420
Section 2—Manhole 12 to Manhole 22 (2,688 LF)=$612,875
Section 3—Manhole 22 to Manhole 32 (2,719 LF)=$619,943
Section 4—Manhole 32 to Manhole 44(2,994 LF)=$682,643
93. Payment of Balance of the Fixed Price. The Town shall reimburse Peterson the
remaining portion of the Fixed Price of$1,415,119 on a quarterly basis following
the receipt of development permits and payment of the applicable pro rata fee for
each of the properties in the Crosstrail North development as identified on Exhibit
B as follows:
9.3.1. Until the Town has paid to Peterson the amount set forth in Paragraph 9.3,the
Town will pay Peterson an amount equal to the applicable pro rata fees
established in the Phase II Resolution (or any amendment thereto) to the
extent such fees arc received by the Town from the owner or developer of
each of the properties in the Northern Area of the Development, as identified
on Exhibit B. Except as provided in Paragraph 9.3.2, the Town shall have no
obligation to pay to Peterson any pro rata fees received by the Town from the
owner or developer of any property in the Southern Area or the Unassigned
Area of the Development,as identified on Exhibit B; and
9.3.2. Peterson acknowledges that, due to land use changes within the sewer shed as
a result of re-zonings and development,the Town may revise the pro rata fees
established pursuant to the Phase II resolution at any time following the
Effective Date. If, at the time the Town revises the pro rata fees that were
established in the Phase II Resolution, (a) the Town has not paid to Peterson
the entire amount of the Fixed Price set forth in Paragraph 9.3, and (b) as a
result of such revision to the pm rata fees, the revised pro rata fees for the
undeveloped portion of the Northern Area of the Development would be
insufficient to fully compensate Peterson for the unpaid portion of the Fixed
Price set forth in Paragraph 9.3 (such amounts to be deemed "Stranded
Development Costs"), then the Town will be responsible to pay to Peterson
the Stranded Development Costs, with such payments to made from pro rata
fees actually received by the Town from the development of the Northern
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Area, the Southern Area and the Unassigned Area of the Development (all as
identified in Exhibit B).
9.3.3. Within fifteen(15) days following the end of each calendar quarter, the Town
will pay Peterson an amount equal to all of the then-applicable pro rata fees
paid to the Town (a) by an owner or developer of a property in the Northern
Area of the Development during the prior calendar quarter and (b) to the
extent the Town is responsible for payment of Stranded Development Costs in
accordance with Paragraph 9.3.2, by an owner or developer of a property in
the Northern Area, the Southern Area or the Unassigned Are of the
Development during the prior calendar quarter.
9.4. Peterson shall be obligated to complete the Work and deliver the Phase H facilities
as shown on the Phase II Plans to the Town as required herein, even in the event
that actual costs to perform the Work and construct Phase II of the System exceed
the Fixed Price.
9.5. The Town shall have no obligation to pay any contractor, supplier or service
provider engaged by Peterson to perform the Work.
10.OperatIon and Maintenance
10.1. Upon Phase II Final Acceptance, the Town will operate and maintain Phase II of
the System as part of its overall sewer system in accordance with standard utility
operation and maintenance practices.
10.2. Peterson will have no responsibility for maintenance or operation of Phase II of
the System after Phase II Final Acceptance.
11.Warranty
11.1. Peterson guarantees and warrants to the Town all work as follows:
11.1.1. That Peterson will provide all product and warranty information to the
Town;
11.1.2. That all materials and equipment furnished under this Agreement will be
new, in conformance with the Submittal Documents, and the best of its
respective kind or equivalent unless otherwise specified;
11.1.3. That all Work will comply with or exceed industry standards and be free
of omissions and faulty, poor quality, imperfect or defective materials or
workmanship;
11.1.4. That where no standard is specified for such workmanship or materials,
they shall be to industry standards;
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11.1.5. That all applicable Work shall be entirely watertight and leakproof in
accordance with all applicable industry customs and practices;
11.1.6. That the Work, including but not limited to, mechanical and electrical
machines, devices and equipment shall be fit and fully usable for its intended
and specified purpose and shall operate satisfactorily with ordinary care;
111.7. That consistent with requirements of the Contract Documents, the Work
shall be installed and oriented in such a manner as to facilitate unrestricted
access for the operation and maintenance of fixed equipment consistent with
the Phase II Plans; and
11.1.8. That the Work will be free of abnormal or unusual deterioration that
occurs because of poor quality materials,workmanship or unsuitable storage.
11.1.9. All work not conforming to guarantees and warranties specified in the
Contract Documents, including substitutions not properly approved and
authorized,may be considered defective.
11.1.10. The warranties set forth in this Article 11 and elsewhere in the Contract
Documents shall survive Phase II Final Acceptance.
11.1.11. If, within one year after the Phase II Final Acceptance or designated
portion thereof or within one year after acceptance by the Town of designated
equipment or within such longer period as may be prescribed by law or by the
terms of the applicable special warranty required by the Contract Documents,
any of the Work is found to be defective, not in accordance with the Contract
Documents, or not in accordance with the guarantees and warranties specified
in the Contract Documents,Peterson shall commence the correction within ten
working days and shall diligently pursue the correction, or such other period
as agreed,after receipt of written notice from the Town to do so.
11.1.12. If at any time deficiencies in the Work are discovered that are found to
have resulted from latent defects, gross mistakes, fraud or misrepresentation
by Peterson, Peterson will be liable for replacement or correction of such
Work or any damage that the Town has incurred, or will incur,related thereto,
regardless of the time limit of any guarantees or warranty.
11.1.13. Any materials or other portions of the Work,installed, furnished, or stored
on site that are not of the character or quality required by the specifications
shall be immediately removed and replaced by Peterson to the satisfaction of
the Town when notified to do so by the Town.
11.1.14. If Peterson fails to correct defective or nonconforming Work as required
by Paragraph 3.7 the Town may elect to either correct such Work in
accordance with 3.7 "Town's Right To Carry Out the Work" or remove and
store materials and equipment at the expense of Peterson.
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11.1.15. Peterson shall bear the cost of making good all work of the Town,separate
contractors or others, destroyed or damaged by such correction or removal
required under this Article or elsewhere in the Contract Documents.
12. Sewer Conveyance Capacity
12.1. In the event of any increase in sewer flows above those set forth for each property
in the Development as set forth on gxhibifD, the Town will require the property
owner responsible for the additional flow to upgrade Phase II to accommodate any
additional flows.
13.Pro Rata for Phase 1
13.1. Nothing in this Agreement shall alter or amend Peterson's, or any subsequent
developer's or permit applicant's obligation, to pay the pro rata share to the Town
for the Phase I construction costs for the entire Crosstrail Property. The pro rata
share of the construction costs for Phase I as of January 2014 is established in the
Phase I Resolution, as such costs have been revised by the Town Council as of the
Effective Date.
13.2. For the avoidance of doubt,Peterson shall have no claim to any permit fee credits
or reimbursement of construction costs for the areas relating to Phase I of the
System.
14.Termination
14.1. Peterson Termination Right
14.1.1. Peterson may, upon at least thirty (30) days prior written notice to the
Town,terminate this Agreement if the Town has not issued a Notice to Proceed by
June 1, 2015. Notwithstanding such termination, Peterson will not be relieved of
any responsibility for costs Peterson has incurred prior to such termination,nor will
Peterson be entitled to any reimbursement or credits therefor. Peterson shall be
relieved of any further responsibility for the construction and costs of Phase II of
the System on and after the date of such termination.
14.1.2. Notwithstanding the above paragraph, in the event of termination by
Peterson, Peterson shall not be relieved of its pro rata costs for Phase I or Phase II
of the System.
14.2. Town Termination Right
14.2.1. The Town may, upon thirty (30) days written notice to Peterson,
terminate,without prejudice to any right or remedy of the Town,the Agreement for
default, in whole or in part, and may take possession of the Work and complete the
Work by contract or otherwise if Peterson refuses or fails to prosecute the Work or
any separable part thereof with such diligence as will ensure the Substantial
Completion of the Work within the Contract Time pursuant to Paragraph 4.3.2.1, or
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fails to meet any milestones established in the Contract Documents or fails to
substantially complete the Work within this period. Prior to issuing the notice of
termination,the Town shall provide Peterson with the thirty(30)day opportunity to
cure as set forth in Paragraph 15.
14.2.2. Upon termination of this Agreement under this Article, Peterson shall
remove all of its employees and property from the project area in a smooth,
orderly, and cooperative manner.
14.2.3. The right of Peterson to proceed shall not be terminated under Paragraph
14.2 because of any delays in the completion of the Work due to unforeseeable
causes beyond the control and without the fault or negligence of Peterson or force
majeure events.
14.3. General Termination Provisions
14.3.1. Upon termination under Paragraph 14.1 or 14.2,Peterson shall:
14.3.1.1. Stop Work under the Agreement on the date and to the extent specified in
the notice of termination;
14.3.1.2. Place no further purchase orders or subcontracts for materials, services, or
facilities, except as may be necessary for completion of such portion of the
Work under the Agreement that is not terminated;
143.1.3. Terminate all purchase orders and subcontracts to the extent that they
relate to the performance of Work terminated by the notice of termination;
143.1.4. At the option of the Town, assign to the Town in the manner, at the times
and to the extent directed by the Town, all of the rights in the contracts so
terminated, in which case, the Town shall have the right, at its discretion, to
settle or pay any or all claims arising out of the termination of such purchase
orders and subcontracts;
14.3.1.5. Settle all outstanding liabilities and all claims arising out of such
termination of purchase orders and subcontracts, with the approval or
ratification of the Town, to the extent it may require, which approval or
ratification shall be final for all the purposes of this Article;
143.1.6. Provide the Town with the total costs for the Work up to the issuance of
the Stop Work order. In accordance with the provisions of Agreement, the
Town shall reimburse Peterson for all costs incurred prior to the Stop Work
Order,not to exceed the Fixed Price;
14.3.1.7. Transfer title to and deliver to the entity or entities designated by the
Town,in the manner, at the times and to the extent directed by the Town to the
extent specifically produced or specifically acquired by Peterson for the
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performance of such portion of the Work as has been terminated, the
following:
14.317.1. The fabricated or unfabricated parts, Work in progress, partially
completed supplies and equipment, materials, parts, tools, dies,jigs, and
other fixtures, completed work, supplies and other material produced as
part of, or acquired in connection with the performance of, the Work
terminated by the notice of termination;and
14.11.7.2. The completed or partially completed plans, drawings, shop
drawings, submittals, information, releases, manuals, and other property
related to the Work and which, if the Agreement had been completed,
would have been required to be furnished to the Town.
14.3.1.8. Use its best efforts to sell, in the manner, at the times,to the extent and at
the price or prices directed or authorized by the Town, any property of the
types referred to in Paragraph 14.3.1.7;provided,however, that Peterson:
14.3.1.8.1. Shall not be required to extend credit to any buyer;and
14.3.1.8.2. May acquire such property under the conditions prescribed by and
at a price or prices approved by the Town; and provided further that the
proceeds of any such transfer or disposition shall be applied in reduction
of any payments to be made by the Town to Peterson under the
Agreement or shall otherwise be credited to the Fixed Price covered by
the Agreement or paid in such other manner as the Town may direct;
14.3.1.9. Complete performance of such part of the Work as shall not have been
terminated by the notice of termination;and
14.3.1.10. Take such action as may be necessary, or as the Town may direct for the
protection and preservation of the property related to the Agreement that is in
the possession of Peterson and in which the Town has or may acquire an
interest.
15.Default
if the Town or Peterson fails to keep, perform, or abide by any material term, condition, or
covenant of this Agreement and does not cure such default within thirty (30) days after
written notice thereof or, if such default cannot be cured in such period,does not within thirty
(30)days commence with diligence and dispatch such act or acts as shall be necessary to cure
the default and shall not cure such default within a reasonable time, then the non-defaulting
party shall be entitled to pursue the remedies set forth herein.
16.Remedies for Default and Failure to Cure
16.1. If Peterson defaults in its obligations under this Agreement, Peterson shall not be
entitled to receive any further reimbursement, credit or Performance and Payment
15
Bond reduction until the Work is completed and Town shall have the right to carry
out the Work as described in Section 3.7.1.
16.2. If the Town defaults on its obligations under this Agreement, Peterson will have
the option, at its sole discretion, to either terminate this Agreement or sue for
specific performance.
17.Hold Harmless and Indemnification
17.1. To the fullest extent permitted by law, Peterson shall, at its sole cost and expense,
indemnify, defend, and hold harmless the Town, its agents, representatives,
employees, successors and assigns from and against all claims, actions,judgments,
costs, liabilities, penalties, damages, losses and expenses, including but not limited
to, attorneys' fees, arising out of or resulting from the performance of the Work,
provided that any such claim, action,judgment, cost, liability, penalty, damage, loss
or expense:
17.1.1. Is attributable to bodily injury, sickness, disease or death,or to injury to or
destruction of tangible property (other than the Work itself) including loss of use
resulting therefrom; and
17.11. Is caused in whole or in part by any negligent act or omission of Peterson,
any Subcontractor or supplier, anyone directly or indirectly employed by any of
them or anyone for whose acts any of them may be liable, regardless of whether or
not it is caused in part by a party indemnified hereunder.
Peterson shall not be obligated to indemnify the Town hereunder for any damages
or injuries, including death, the proximate cause of which is the sole negligence of
the Town, consistent with Va. Code§ 11-4.1.
Such obligation shall not be construed to negate, abridge, or otherwise reduce any
other right or obligation of indemnity that would otherwise exist as to any party or
person described in this Paragraph 17.2.
17.2. In any and all claims against the Town or any of its agents, representatives, or
employees by any employee of Peterson, any subcontractor, anyone directly or
indirectly employed by any of them, or anyone for whose acts any of them may be
liable, the indemnification obligation under this Paragraph I7.2 shall not be limited
in any way by any limitation on the amount or type of damages, compensation or
benefits payable by or for Peterson or any subcontractor under workers'
compensation acts,disability benefit acts or other employee benefit acts.
17.3. No provision of Paragraph 17.2 shall give rise to any duties on the part of the
Town,or any of its agents,representatives or employees.
17.4. The obligations of Peterson under Paragraph 17.2 shall not extend to the liability
of the Town or its agents or employees arising out of(a)the preparation or approval
of maps, drawings, opinions, reports, surveys, Change Orders, designs or
16
specifications, or(b) the giving of or the failure to give directions or instructions by
Town,its agents or employees provided such giving or failure to give is the primary
cause of injury or damage.
18.Insurance and Bonds
18.1. Bonds
18.1.1. Peterson shall furnish to the Town a performance bond (the "Performance
Bond") in the sum of the Fixed Price executed by a surety authorized to do
business in Virginia, payable to the Town of Leesburg, Virginia, or such other
entity as may be identified in the Agreement, and conditioned upon the faithful
performance of the contract in strict conformity with the plans, specifications, and
conditions of the Contract Documents. Such Performance Bond shall be in the
form set forth on Exhibit E.
18.1.2. Peterson shall furnish to the Town a payment bond (the "Payment Bond") in
the amount of the Fixed Price payable to the Town of Leesburg or such other entity
as may be identified in the Agreement, and executed by a surety authorized to do
business in Virginia. Such bond shall be conditioned on the prompt payment to all
claimants who have and fulfill contracts to supply labor or materials to Peterson for
all material furnished or labor supplied or performed in the prosecution of the
Work. "Labor and materials" shall include public utility services and reasonable
rentals of equipment, but only for periods when the equipment rented is actually
used at the project site. Such Payment Bond shall be in the form set forth on
Exhibit F.
18.1.3. Peterson shall ensure that all sureties providing bonds for the Project will give
written notice to the Town, at least thirty days prior to expiration or termination of
the bond(s).
18.1.4. If the surety on any bond furnished by Peterson is declared bankrupt or
becomes insolvent or its right to do business is terminated in Virginia, Peterson
shall within thirty (30) days thereafter substitute another bond and surety, both of
which shall be acceptable to the Town.
18.1.5. If at any time, the rating for Peterson's surety that issued the bonds drops
below Best's Key Rating Guide of A-, Peterson shall within thirty (30) days after
notice from the Town to do so, substitute an acceptable bond(s) in such form and
sum and signed by such other sureties as may be satisfactory to the Town. The
premium on such bond(s) shall be paid by Peterson. No further payment shall be
deemed due nor shall be made until the new sureties have been qualified and
accepted by the Town.
18.1.6. If more than one surety executes a bond, each shall be jointly and severally
liable to the Town for the entire amount of the bond.
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18.2. Insurance.
18.2.1. At least thirty(30)days prior to the commencement of the Work,Peterson
or its contractor shall procure and maintain in full force and effect with responsible
insurance providers (as evidenced by an AM Best rating of A-NIII or better) the
following insurance in at least the minimum amounts specified below, until Phase
H Final Acceptance. Following the Phase II Final Acceptance, Peterson shall
provide evidence of the insurance required herein at any time during the warranty
period that Peterson is performing warranty work.
18.2.2.Workers' Compensation and Employers' Liability. Workers' compensation
insurance in compliance with appropriate federal and state laws, and Employers'
Liability Insurance with limit of not less than $500,000 for bodily injury per
occurrence and $500,000 in the aggregate, and$500,000 disease policy limit.
18.2.3.Commercial General Liability. Commercial general liability insurance,
occurrence form, including, but not limited to, contractual coverage for all of the
provisions of this Agreement, with limits of not less than $1,000,000 per
occurrence and$2,000,000 in the aggregate; $1,000,000 Products and Completed
Operations aggregate; S1,000,000 Personal Injury and Advertising injury per
offense.
18.2.4.Automobile Liability. Automobile liability insurance, including vehicles owned,
hired and non-owned, with a combined single limit of not less than $1,000,000
per accident.
18.2.5. Excess Liability. Other than the policies for Workers' Compensation and
Employers Liability insurance, the liability limits may be satisfied through a
combination of primary and excess (or umbrella) coverage with a combined
single limit of not less than $10,000,000.
18.2.6.The Town shall be furnished with a certificate of insurance as evidence that the
foregoing insurance is in effect. Peterson shall provide the Town with thirty(30)
days' notice prior to the cancellation or material change of any such coverage.
The Town shall be named as an additional insured with respect to Peterson's
activities under this Agreement under the liability coverage required by this
Article 18. Maintenance by Peterson of the insurance required herein shall in no
way be interpreted as relieving Peterson of any other obligations it may have
under this Agreement.
18.2.7.Peterson's insurance coverage shall be primary coverage without right of
contribution from any other insurance carried by the Town. Insurance maintained
by the Town is for the exclusive benefit of the Town and shall not inure to the
benefit of Peterson. All policies procured by Peterson, other than for Worker's
Compensation,shall require the insurer to waive subrogation against the Town.
18
19.Dispute Resolution 1
19.1. In the event of any dispute between the Parties, the Parties shall attempt first to
resolve the dispute by informal negotiation between their staff members. If the
dispute cannot be resolved by informal staff negotiation, then each of the Parties
shall promptly send the other a detailed letter, describing the dispute and the basis
for their respective positions. If the dispute is still not resolved,then each party will
designate a senior manager. The senior managers will confer within ten (10)
business days and attempt to resolve the dispute. If the senior managers are
unsuccessful in resolving the dispute, then each Party will have the right to resolve
the dispute through litigation (or enter into any such method of alternative dispute
resolution as the Parties may at the time agree), provided, however, that any
litigation shall be brought in the state courts of the Commonwealth of Virginia
located in Loudoun County.
20.Assignment
20.1. This Agreement may be assigned by Peterson to any party that acquires all or
some portion of its interest in the Development; provided such party (i) has
technical capabilities and experience similar to or greater than Peterson, (ii) has a
credit rating(if any) and financial resources similar to or greater than Peterson, and
(iii) is otherwise acceptable to the Town in its sole discretion. No other assignment
shall be made by either party without the prior written consent of the other party,
which shall not be unreasonably withheld,conditioned or delayed.
20.2. Peterson may also assign the right to receive its pro-rata reimbursement as set
forth in this Agreement to any third party without the Town's consent or approval.
Peterson,however,shall notify the Town of such assignment in writing.
21.Claims for Damages;ConseQuential Damaaes
21.1. Should Peterson suffer injury or damage to person or property because of any act
or omission of the Town or of any of its employees, agents or others for whose acts
either is legally liable,claim shall be made in writing to the Town within thirty days
after the first knowledge of such injury or damage; otherwise, Peterson shall have
waived any and all rights it may have against the Town, or its employees,
representatives and agents.
21.2. Neither the Town nor Peterson, nor their subcontractors or suppliers of any tier,
shall be liable to the other for any consequential, special, incidental, indirect or
punitive losses or damages, whether arising in contract, warranty, tort (including
negligence), strict liability or otherwise, including losses of use, profits, business,
reputation or financing; provided, however, nothing herein shall be deemed to limit
a Party's liability to the other party for indemnity obligations under this Agreement.
22. Protections of Persons and Property
19
1
The Town is not responsible for the means, methods, techniques, sequences or procedures
utilized by Peterson, or for safety precautions and programs in connection with the Work.
Peterson shall be solely responsible for initiating, maintaining, and supervising all safety
precautions and programs in connection with the Work. This requirement applies
continuously throughout the Agreement, until Phase H Final Acceptance, and is not limited
to regular working hours. Peterson shall ensure that the Work is performed in accordance
with the Safety Precautions attached hereto as Exhibit I.
23.Emergencies
23.1. In any emergency affecting the safety of persons or property,Peterson shall act to
prevent threatened damage, injury, or loss to the Town. Peterson shall notify the
Town of the situation and all actions taken immediately thereafter. If,in the opinion
of Peterson, immediate action is not required, Peterson shall notify the Town of the
emergency situation and take necessary steps to remedy the emergency. If any loss,
damage,injury or death occurs that could have been prevented by Peterson's prompt
and immediate action or the emergency resulted from acts or omissions of Peterson,
or anyone directly or indirectly employed by Peterson, or by anyone whose acts for
which Peterson is liable, Peterson shall defend, fully indemnify and hold harmless
the Town (including attorneys' fees) from all actions resulting from the emergency.
Any additional compensation or extension of time claimed by Peterson on account
of emergency work shall be determined as provided in Article 5 of this Agreement.
23.2. Prior to commencing the Work and at all times during the performance of the
Work, Peterson shall provide the Town with two, 24-hour emergency phone
numbers where its representatives can be contacted.
24.Disclaimer of Third Party Beneficiaries
24.1. This Agreement is solely for the benefit of the Parties and their respective
successors or assigns, and no right or cause of action shall accrue to or for the
benefit of any third party not a party hereto or a successor or assign of a party
hereto.
25.Peterson's Representations
25.1. By entering into this Agreement with the Town, Peterson represents and
warrants the following, together with all other representations and warranties in the
Contract Documents:
25.1.1. That it is experienced in and competent to perform the type of work
required and to furnish the plant, materials, supplies or equipment to be so
performed or furnished by it;
25.1.2. That it is financially solvent, able to pay its debts as they mature, and
possessed of sufficient working capital to initiate and complete the Work required
under the Agreement;
20
25.1.3. That it is familiar with all laws, ordinances, permits, regulations and
resolutions that may in any way affect the Work or those employed therein,
including but not limited to any special laws or regulations related to contractor
licenses and/or registrations for the Work or any part thereof;
25.1.4. That such temporary and permanent work required by the Contract
Documents that is to be done by it will be satisfactorily constructed and fit for use
for its intended purpose and that such construction will not injure any person, or
damage any preppy;
25.1.5. That it will fully comply with all requirements of the Contract Documents;
25.1.6. That it will perform the Work in a skillful manner consistent with good
workmanship, sound business practice, and in the most expeditious and economical
manner consistent with the best interests of the Town;
25.1.7. That it will furnish efficient business administration and experienced
superintendence and an adequate supply of workers, equipment, tools, and
materials at all times;
25.1.8. That it has carefully reviewed the Work required and that the Work can be
planned and executed in a normal and orderly sequence and be reasonably
scheduled so as to insure completion of the Work in accordance with the Contract
Documents, allowing for normal and reasonably foreseeable weather, labor and
other delays,interruptions and disruptions of the Work at the site designated;
25.1.9. That it will complete the Work within the Contract Time and all portions
thereof within any required Agreement milestones and any applicable extensions
thereunder,
25.1.10. That the Fixed Price is based upon the labor, materials, systems and
equipment required by the Contract Documents,without exception;
25.1.11. That it does not and will not during the performance of the Agreement
violate the provisions of the Federal Immigration Reform and Control Act of 1986,
as amended, which prohibits the employment of illegal aliens, and Federal and
State employment and wage hour laws;
25.1.12. That it has taken stcps reasonably necessary to ascertain the nature and
locations of the Work of the Agreement,has investigated and satisfied himself as to
the general and local conditions which can affect the Work or its cost,including but
not limited to: conditions bearing upon transportation, disposal, handling, and
storage of materials; the availability of labor, water, electric power, and roads;
uncertainties of weather, river stages, tides, or similar physical conditions at the
site; the conformation and conditions of the ground; and the character of
equipment and facilities needed before and during work performance;and
21
•
25.1.13. That no employee of the Town shall be admitted to any share or part of
this Agreement or to any benefit that may arise therefrom which is not available to
the general public.
26.Severabillty
26.1. If any part of this Agreement is found invalid or unenforceable by any court, such
invalidity or unenforceability shall not affect the other parts of this Agreement if the
rights and obligations of the Parties are not materially prejudiced and if the
intentions of the Parties can continue to be effective. To that end, this Agreement is
declared to be severable.
27.Binding Upon Successors
27.1. This Agreement shall be binding upon and shall inure to the benefit of the
successors or assigns of the Parties.
28.Applicable Law;Venue
28.1. This Agreement and the provisions contained herein shall be construed,
controlled,and interpreted according to the laws of the Commonwealth of Virginia,
without regard to any conflict of laws principles.
28.2. Any litigation shall be brought in the state courts of the Commonwealth of
Virginia located in Loudon County,Virginia.
29.Notices
29.1. Unless otherwise specified in this Agreement, all notices or requests shall be in
writing and shall be given by hand delivery or certified mail, return receipt
requested,postage prepaid,addressed as follows:
If to the Town: With a copy to:
Town of Leesburg Town of Leesburg
Attn: Town Manager Attn: Department of Utilities
25 West Market Street 1385 East Market Street
Leesburg, VA 20176 Leesburg,VA 20175
(703)-771-2750 (703) 771-2700
If to Peterson: With a copy to:
Peterson Companies Jonathan Rak
Attention:Nancy McGrath McGuireWoods,LLP
12500 Fair Lakes Circle 1750 Tysons Boulevard,Suite 1800
Fairfax,VA 22033 Tysons,VA 22102
22
or to such other persons and places as the Parties may specify by notice. The
effective date of any notice or request shall be the date of receipt if delivered by hand, or the
postmarked date thereof.
30.Amendment
30.1. This Agreement may be amended or modified on the agreement of both parties
and documented in a writing signed by duly authorized representatives of both
parties.
31.Counterpart Execution
31.1. The Pardes may execute this Agreement in counterparts, which, in the aggregate,
shall constitute one and the same instrument when signed by both Parties; and
thereafter, each counterpart shall be deemed an original instrument as against any
party who has signed it.
31.2. This Agreement, including all exhibits and attachments hereto (all of which are
incorporated by reference herein), shall constitute the entire agreement between the
Parties relating to the subject matter hereof, and supersedes and replaces any
provisions on the same subject contained in any other agreement among the Parties,
whether written or oral,prior to the Effective Date.
List of Exhibits:
Exhibit A: Town Council Resolutions
Exhibit B: Properties in the Sewer Shed — Crosstrail Northern Area, Crosstrail
Southern Area and Miscellaneous/Unassigned Area
Exhibit C: RESERVED
Exhibit D: Projected Sewer Flow Rates.
Exhibit E: Identification of Required Phase II Easements
Exhibit F: Form of Performance Bond
Exhibit G: Form of Payment Bond
Exhibit H: Form of Maintenance Bond
Exhibit I: Safety Precautions
(SIGNATURES ON FOLLOWING PAGE)
23
1
IN WITNESS WHEREOF,each Party hereto represents that it is duly authorized to enter
into this Agreement and has caused its authorized representative to execute this Agreement as of
the date first above written.
TOWN OF LEESBURG
By 1S�
Name: � Dey4 r Lot_
Title: 1 �'...� � 4.,/k G 04-
Date: O - opt- t 5
THE PETERSON COMPANIES L.C.
By. MVP Management, LLC,its Manager
By.
N.:us e: o ►7v. , P e-t z r-Sc,
Title:
Date: 3/3 0// S
24
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,,1Zi•I....„_. • •.14 ,..„ .-,...--,_r- 4,.......-. :. .• ,. • 110. 4,..... ir 4. ,..gT et.... - : •ze..,. .nT:1 li16,,,Th.-.
••••'•- .• ,. :■1110.. ...elP..1• OPP°12•4*-/-‘11'. ' •.0. .4. -. 1.-•.'''''• ...-.21r-4,4-7.'- :,:lepb'i-,.-?_-_---,::-....,,:-.7.-..-. , ••• - - i •31:--
-7 t „.-- • --`- d,i;> -..:rf:•-''' "- --...---',A .t__-,r.'r..a..,-.---- ....--i2.4„..--"..i'l(i-''-ii"-..r. ..-RI.'--Li— Ri-AREA• a.r---1•1- ,..-.•f:1?
'c\ - -*A,' .--w..i-r,..w.,,,,...,,i.,- :-.--.0-,'..,- .,--.1 -"--s--=,-.-- -,,--‘.::-.--r--.4,-. i.'-- •I
. •A 4 ...4t..I.ftartgi. •••-_.•,;:._..• -11*.' '.,•!,..,•.■ , ''.:''. • .....M. ••,'.,•-•.•,;•;:-_-_.11:1-;,:";1.,.• 4••••.,0',t.k',.1%-j •••, ...• :;....,,‘-
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CROSSTRAL
4•64.•me a Properties in Sewer Shed
•
•44141414114r
EXHIBIT
� G
RESERVED
lower Syc n Sewer Pro-Rata(Revised Flow for Gvsstrall per Peterson 1/20/1S) �j�
Pens I Comeme 114',Awl • • Tad y I ► J
IOW SnxMn Pump 3tatbe $2.134,000,00 ..iJ
tew3r Srmfrt Brae Mdn .51,150,1120.14 .1
- 1
ee�aol Sa+intae+wryh1MFl $1attT7L26 1
Endtws.t1Deka L SOC's fa pump Imam. Ph.a71 L R $73!.25.00
lad _ 55.723.103.40 1
t
i
gm gm 1
7I
lector f oe� �
pmt fatiaated Flan led i
Prows 90:WO
towimnCowex 24ep0 L
Tear!Voiles woo
[edrin eel Rod embnuld etill moo'Iota/Sector!PPMflaQ 201.000
seder I oeweb;esat Isth old Newell
Cranial 04ardnaa lmdad ntteam amid rm ntr
Dwane(southern) 219 rzo 1
Mho Ptolemy 55.000
Ted$runt 0 Now Wag 371,750
TOW Flow of Seowi rondo mda Pomp Staten ad Farromale 7m0.7S0
%d Tell Hum from Sem Millar illar hew Stria.and 7rntvnale - .alt 707.000
%ef To Flew from Stow a to dm Rep Suwon ad For snaln 74%_ S7m.7S0.
Ra+td ea%at Tod Raw lee maim don m sad seder b Wallows _
Cefattered@ haat Told S4040 1% S.mer I Sime leant a% Sent d sane
Lowe*AN Pte a Station 52.134 C00 26% JSS2.320 71/5- 51.113 100,
Lam SS0IRnFeraeMaki '$LSSS6S 2611 5221.757 74% 5134231 • -
+Weon Grow*SWIM SewelMosel} 63.316.663 10011 57.766/41. OS, 50
&lei rind Dente IL IM's for Puma Sudan FM Peso I L e 5463.641 26e% 5316.753__ 745 5706,914
TOW 55329.371 _ $2AO1174t $3531.005
The fio3aa abate pet de.elawdat mid*,p0n!runt Ili 1dbom ii
SIRms 1 w11daD101.: %d r /ro.Ilate (1001 I heave Mara I3%S COIL tidal
Iowa 45% 5i UG, Net eamwenele
Leda:..4;1ot 32% S2a3.965{ _ $37S.541
Tmmva Creek* 43% 51.024700 WOWS
sithran 111, 51.3.1 0 S11.ld.
tad 403 Reed(fadteuhf 11atW 10016 11.445 p4 $1033214
Seiner I Oeeelepaem 5 of moor hallow Shan 120051 proimm Sher E Coat ballad
E m a 0amtherniaArdlre Tam hrnhl 35% S1.OS1.300 $1.363.410 Mk 55.455.601 51924.$2.
flac'mow Qgymernl » $429,210 SWAM
fatal MIS ORM 55.154.1'3
Phase 1 2005 Pews Rate wee re-estals•s .d IC mood mini 13(4 tea for - -- �Oft
5005) Teed Cest Toad md halhb Rate(1011Q (2015 Rat WWI
Satan - $2406673.71 702A00 51192 weed 515.71 oerwd
0 _ _ 53323.004.63 574730 5505 1ersad $66 pared
1/15 pat CewRlllt tan Lida:1171.1
Phase 11 Cotaatxdoa Parojes - - • - • •Tots
Weis 11116r WNW Seamy Sewer Phase a soaucace
Tad _ S4.000,000.00
Seam a oerdosm.ot £pleased slew ma ,
(=gra/Washerslathtdbal Taws Paosb) 204,730
Gammaðers! ammo
Mbc Property SS GOQ
TOW Sector'Rows lad) SPL1S0
lamada%d Tad Raw the PeaRSO share m eadt stems b as Maws: _
Cetmve0m IMMO Taal Seam I% Seater I Sire Sealer 0% Smite 1 Shea
Cathryn MOGrM tSanleySewerrams S Se,1104000 0% 102% ScA0040M
Sam! 34004000 30. S400acooi
Tar hefts abate perdeeebmaem*lads each oats h s Mows:
Seam I be+lopasera St al sector staaate Share seams)
twao-el Plashestactsdtu Tom Snob/ ISYS, 31.415.1111
Ctmrad(SOYIhl1p) S4ll,r $1.997.411
Mks P ty 151e $317.471
TeW _ 100li fe.009,000
!kw Posse 0 Psaasta Item be eslalWcW acstattaa lama as Sala QM WM st
1 Cost Top!1p0 tRa 1aa Pate 42413)
itoxil
1 l r 54 S) -$691 parsed
aoec amp Is devil,'d say pat&rant bath sasses clout retpdre a reevaluates.established praise 1/13 UM Ooastaefos bloc 9!71.21
t.
EXHIBIT
liVipp, kOW rr
}
4.111.--_IA,0 VT --
LUCK STONE CORPOA4 TJON
�� +: WOOD: ta• • C
) 0 111 Amp W4;N/4:. • • -,_0F40:,..: ,_,
. ilk 4„, „..0401,_......._ .,,., z'EWE
STATION
aaasa'��%, LUCK STONE 0, •0• o
-, .�.t.. ::••• t. -,•' CARRETTBOWSER ` '
`� tallies � AND
,� fa- NICOLE FALCETO /
ii��, ' 1 �P Vii. is
►��lnittt!`�ii i,t�',t*,�
LOUDOUN COUNTY, VIRGINIA l.u,at.lt.ntt�rit ,t.n1 30 11411V
Itt;111 " ♦ ���:a+rlj l 7171494OFLEESBURG
�W1111 4 •' ,11�,'•� S�iiwrARVSEfvE+aFSA1'r
alp ,aaa t 1 ■ LOUDOUN COUNTY BOARD IIIIMII
- OF SUPERVISORS
��_ s ::`•1° :*,,Z, SYCOUN CORNER,
bp
.L.••' '
� _ •a��lxt�•�s�j KIMMCKEENAN, TRUSTEE
IS II.
tlttl •�l �
t •••s....,, TA.
04
.11 iii iiiiimi
,-IserrititiClid ‘iii
".-1 ",;7.-MI:4A
A441-W" It
,_i_ .....:07:ip 041 '7"' E R 1 C A:SF... .,.., ..,,A i;#it ii.,..ii,
iq
,__,
31 41
1.1.1 „ ........„ 1..._„_..w.,\, .0,, ,,,,,\ kt
„;„,..,... ,...; $.... 11111.0.0kks:z INV,' k
....-.. ...„... 1.... - —.7:re . ,..,..,:..,,:.44.4. 60
,,:..,-;4',... ...'-.4.‘--\ \, 4
of/r, ,t_..„,..) ---(1. , I
_ 4,Ys� '''`CROSSTRAIL SOUTHERNA REA
��' t� /'i� A I.-�� ,z tip,-�-��/
,`17 x;11 'J,� `• \*av �-y 11,1 ; , l
't THERM AR V• i � � h F� a-i-', 4
___iimm...;��',CROSSTRAII NOR Via. ����,� �-��f� i •
P E T E R S O N. Exhibit 'E' CROSSTRAIL
• PM. ,
.. 1.. iderrilficatlan of Required Phase II Easements October L2014 Ombriar amc r•war
t� ti�N ^ter+
�s�a • m as
EXHIBIT
VIRGINIA PERFORMANCE BOND
BOND NO.
AMDUNT5
KNOW ALL MEN BY THESE PRESENTS,that
of -
hereinafter called the CONTRACTOR(Principal),and
a corporation duly organized and existing under and by virtue of the laws of the State
of hereinafter called the SURETY, and authorized to
transact business within the
Commonwealth of Virginia,as SURETY, are held and firmly bound unto The Town of Leesburg
as OWNER(Obligee), in the sum of:
DOLLARS (S ), lawful money
of the United States of America, for the payment of which, well and truly be made to the
OWNER_ The CONTRACTOR and the SURETY bind themselves and each of their heirs,
executors,administrators, successors, and assigns,jointly and severally, firmly by these presents
as follows:
THE CONDITION OF THE ABOVE OBLIGATION IS SUCH THAT:
WHEREAS.the CONTRACTOR has executed and entered into a certain Contract hereto
attached with naming the OWNER as beneficiary,dated this day of
,2d
for
NOW, THEREFORE, the CONTRACTOR shall at all times duly, promptly, and faithfully
perform the Contract and any alteration in or addition to the obligations of the CONTRACTOR
arising there under, including the matter of infringement, if any, of patents or other proprietary
rights,and shall assure all guarantees against defective workmanship and materials, including the
guarantee period following final completion by the CONTRACTOR and final acceptance by the
OWNER and comply with all covenants therein contained in the Specifications, Drawings, and
other Documents constituting a part of the Contract required to be performed by the
CONTRACTOR, in the manner and within the times provided in the Contract, and shall fully
indemnify and save harmless the OWNER from all cost and damage which it may suffer by
reason or failure so to do,and shall fully reimburse and repay it all outlay and expenses which it
may incur in making good any default and reasonable counsel fees incurred in the prosecution of
or defense of any action arising out of or in connection with any such default,then this obligation
shall be void;otherwise to remain in full force and effect.
Furthermore. the SURETY, for value received, hereby stipulates and agrees that no change,
extension of time, alteration, or addition to the terms of the Contract Documents or to the work
to be performed there under, shall in any way affect its obligation on this bond, and it does
hereby waive notice of any such change,extension of time,alteration,or addition to the terms of
the Contract Documents.
PROVIDED.FURTHER that no final settlement between the OWNER and the CONTRACTOR
shall abridge the right of any beneficiary hereunder,whose claim may be unsatisfied.
IN WITNESS WHEREOF, the above parties bounded together have executed this instrument
this day of , 20 . the name and corporate seal of
each corporate party being hereto affixed and those presents duly signed by its undersigned
representative,pursuant to authority of its governing body.
CONTRACTOR
By .': (Seal)
Attest -
SURETY
By (Seal)
Attest
NOTE: Date of bond must not be prior to date of Contract. If CONTRACTOR is a partnership,
all partners should execute bond.
IMPORTANT: The SURETY named on this bond shall be one who is licensed to conduct
business in the Commonwealth of Virginia,and named in the current list of Companies Holding
Certificates of Authority as Acceptabk Sureties on Federal Bonds and as Acceptable Reinsuring
Companies, as published in Circular 570(amended)by the Audit Staff Bureau of Accounts, U.S.
Treasury Department. All bonds signed by an agent must be accompanied by a certified copy of
the authority to act for the SURETY at the time of the signing of this bond.
•
•
EXHIBIT
VIRGINIA PAYMENT BOND
BOND NO.
AMOUNT: S
KNOW ALL MEN BY THESE PRESENTS,that
of
hereinafter called the CONTRACTOR(Principal),and
a corporation duly organized and existing under and by virtue of the laws of the State of
. hereinafter called the SURETY, and authorized to transact business within the
Commonwealth of Virginia; as SURETY, are held and firmly bound unto The Town of Leesburg
hereinafter as"TOIVIs?'(Obligee);in the sum of
DOLLARS(S ), lawful money of the United States of America, for the
payment of which,well and truly be made to the TOWN, the CONTRACTOR and the SURETY bind
themselves and each of their heirs, executors, administrators, successors, and assigns, jointly and
severally,firmly by these presents as follows:
THE CONDITION OF THE ABOVE OBLIGATION IS SUCH THAT:
WHEREAS, the CONTRACTOR has executed and entered into a certain Contract hereto attached,
with the TOWN,dated ,20 .for:
NOW, THEREFORE, if the CONTRACTOR shall promptly make payment to all persons, firms,
subcontractors, and corporations furnishing materials for or performing labor in the prosecution of the
work provided for in the Contract,and any authorized extension or modification thereof including all
amounts due for materials, lubricants, oil, gasoline, coal and coke, repairs on machinery, equipment,
and tools consumed or used in connection with the construction of the work, and all insurance
premiums on the work,and for all labor performed in the work,whether by subcontractor or otherwise,
then this obligation shall be void;otherwise to remain in full force and effect.
PROVIDED, HOWEVER, char the SURETY, for value received, hereby stipulates and agrees that no
change,extension of time,alteration,or addition to the terms of the Contract Documents or to the work
to be performed thereunder, or the Specifications accompanying the same, shall in any way affect its
obligation on this bond, and it does hereby waive notice of any such change, extension of time_
alteration,or addition to the terms of the Contract Documents.
PROVIDED. FURTHER that no final settlement between the TOWN and the CONTRACTOR shall
abridge the right of any beneficial',hereunder,whose claim may be unsatisfied.
IN WITNESS WHEREOF,the above parties bounded together have executed this instrument this
day of ,20 . the name and corporate seal of each corporate party
being hereto affixed and those presents duly signed by its undersigned representative, pursuant to
authority of its govemine body.
CONTRACTOR
By (Seal)
Attest
SURETY
By (Seal)
Attest
NOTE: Date of bond must not be prior to date of Contract. if CONTRACTOR is a partnership, all
partners should execute bond.
IMPORTANT: The SURETY named on this bond shall be one who is licensed to conduct business in
the Commonwealth of Virginia, and named in the current list of Companies Holding Certificates of
Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies, as
published in Circular 570 (amended) by the Audit Staff Bureau of Accounts, U.S. Treasury
Department. All bonds signed by an agent must be accompanied by a certified copy of the authority to
act for the SURETY at the time of the signing of this bond.
.a• Form-pc-4
1)%
MAJN FENANCF AGREEMENT&BOND
Leesburg,Virginia
,20_ .
Dare Name of Subdivision or Development
ICtOW ALL MEN BY THESE PRESENTS: , -
'Ihat we,
(Name of Developer)
of .as principal.
(Address)
and ,a corporation organized
under the laws of the State of ,and authorized to conduct business in the Commonwealth of
Virginia,as Surety, is held and firmly bound upon the Town of Leesburg,Virginia in the sum of
Dollars.(S )lawful money of the United States for
the payment of which will and trulybe made,we bind ourselves.our heirs,devisees,executors,administrators,
successors and assigns,jointly and severally,firmly by these presents.
The condition of the foregoing obligation is such that:
WHEREAS,the Principal has heretofore on the day of
entered into a contract(PC-2)with said Town of Leesburg,Virginia for the installation and constmetion of all
improvements and facilities as shown on the construction plans of the subdivision or development known as:
Said contract is incorporated herein by reference and shade a par hereof as if fully set out herein.
WHEREAS, the improvements have been made and installed in said subdivision or development in
accordance with said contract.
NOW,THEREFORE,If the said Principal shall faithfully perform the above mentioned contract by
maintaining and keeping said work in good repair for the said maintenance period of one year as provided,
including payment to all persons performing labor and furnishing materials in the prosecution of such work,
then these presents shall be null and void,and have no further effect,but if default shall be made by the said
Principal in the performance of its contract to so maintain and repair said work,then these presents shall have
full force and effect and said Town bf Leesburg,a municipal corporation of Virginia,shall have and recover
from the said Principal and its Surety damage,or any expenses incident thereto,in the premises,as provided,
and it is further understood and agreed that this obligation shall be a continuing one against the Principal and
Surety hereon,and that successive recoveries may be had hereon for successive breaches until the full amount
shall have been exhausted;and it is further understood that the obligation herein to maintain said work shall
continue throughout said maintenance period,and the same shall not be changed,diminished,or in any manner
affected from any cause during said rime.
IN WITNESS WHEREOF,the said Principal,has
caused these presents to be executed by its ,and attested
by its ,and the said ,Surety,has caused these presents to be
executed by its .and the said has set his
hands this day of .20 .
pRINCI?AI,
By. •
COUNTERSIGNED BY:
ATTEST:
By:
Resident Virginia Agent
•
Form Approved:Town Amway
f^
EXHIBIT
EXHIBIT"I"
Safety Precautions
Safety of Persons and Property.
1. Peterson shall take reasonable precautions for safety of, and shall provide reasonable
protection to prevent damage,injury or loss, to:
1. All employees on the Work and other persons who may be affected
thereby;
• ii. All the Work and materials and equipment to be incorporated therein
whether in storage off the site, under the care, custody or control of
Peterson, machinery and equipment. Peterson shall comply with, and
ensure that Peterson's personnel and subcontracted personnel comply with
all current applicable local, state and federal policies, regulations and
standards relating to safety and health, including, by way of illustration
and not limitation, the standards of the Virginia Occupational Safety and
Health Administration for the General Industry and for the Construction
Industry, the Federal Environmental Protection Agency Standards, the
Manual of Accident Prevention in Construction published by the
Associated General Petersons of America and the applicable standards of
the Virginia Department of Environmental Quality.
Iii. Other property at or adjacent to the Work, including trees, shrubs, lawns,
walks, pavements, roadways, structures and utilities not designated for
removal,relocation or replacement in the course of construction.
2. Peterson shall give all notices and comply with applicable laws, ordinances, permits,
rules, regulations and orders of any public authority bearing on the safety of persons or
property or their protection from damage,injury or loss.
3. Peterson shall at all times safely guard the Town's property from injury or losses in
connection with this Agreement. It shall at all times safely guard and protect its own
work and adjacent property as provided by law and the Contract Documents from
damage. All security personnel, passageways, guard fences, lights, and other facilities
required for protection of the property and the Work described herein shall be provided
and maintained at Peterson's expense.
4. Peterson shall erect and maintain, as required by existing conditions and progress of the
Work, all reasonable safeguards for safety and protection, including danger signs and
other warnings against hazards, promulgating safety regulations and notifying owners
and users of adjacent utilities.
25
5. When the use or storage of explosives or other hazardous materials or equipment is
necessary for the execution of the Work, Peterson shall exercise the utmost care and shall
carry on such activities under the supervision of properly qualified personnel.
6. Peterson shall promptly remedy at its own cost and expense all damage or loss to any
property referred to in Paragraph 1(ii)and 1(iii)of this Exhibit"I",to the extent that such
damage or loss is caused by Peterson. Peterson shall perform such restoration by
underpinning, repainting, rebuilding, replanting, or otherwise restoring as may be
required or directed by the Town or shall make good such damage in a satisfactory and
acceptable manner. In case of failure on the part of Peterson to promptly restore such
property or make good such damage, the Town may, upon two days written notice,
proceed to repair,rebuild or otherwise restore such property as may be necessary,and the
cost thereof will be deducted from any monies due or to become due to Peterson under
the Agreement.
7. Peterson shall give notice in writing at least 48 hours before breaking ground,.to the
Town, all persons, public utility companies, superintendents, inspectors or those
otherwise in charge of property, streets, water pipes, gas pipes, sewer pipes, telephone
cables, electric cables, railroads or otherwise, who may be affected by Peterson's
operation, in order that they may remove any obstruction for which they are responsible
and have a representative on site to see that their property is properly protected. Peterson
is responsible for any damages or claims resulting from any excavation and shall defend,
fully indemnify, and hold harmless the Town from all actions resulting from such work
regardless of whether Peterson gave proper notice under this clause.
8. Peterson shall protect all utilities encountered while performing its work, whether
indicated on the Contract Documents or not. Peterson shall maintain utilities in service
until moved or abandoned. Peterson shall exercise due care when excavating around
utilities and shall restore any damaged utilities to the same condition or better as existed
prior to starting the Work, at no cost to the Town. Peterson shall maintain operating
utilities or other services, even if they are shown to be abandoned on the drawings, in
service until new facilities are provided,tested and ready for use.
9. Peterson shall return all improvements on or about the site and adjacent property that are
not shown to be altered, removed or otherwise changed to conditions that are
- substantially the same as those that existed prior to starting work.
10.Peterson shall protect the Work,including but not limited to,the site,stored materials and
equipment, excavations, and excavated or stockpiled soil or other material, intended for
use in the Work, and shall take all necessary precautions to prevent or minimize damage
to same or detrimental effect upon its performance, caused by or due to rain, run-off,
floods,temperature,wind, dust, sand, and flying debris. For example,but not by way of
limitation, Peterson shall, when necessary, utilize temporary dikes, channels or pumping
to carry-off, divert or drain water, and as necessary tie-down or otherwise secure the
Work and employ appropriate covers and screens.
26
1
11.Peterson shall be responsible for the prevention of accidents and the protection of
material,equipment and property.
12.Peterson shall not load or permit any part of the Work to be loaded so as to endanger the
safety of the Work,persons or adjacent property.
13.Peterson has sole and complete responsibility for the correction of any safety violation
and sole liability for the consequences of the violation. Peterson shall give prompt
written notice of any safety violation to the Town.
14.Peterson shall provide, or cause to be provided, all technical expertise, qualified
personnel, equipment, tools and material to safely accomplish the Work, specified to be
performed by Peterson and subcontractor(s).
15.Peterson shall be responsible for the preservation of all public and private property, trees,
monuments, etc.,along and adjacent to the street and/or right-of-way, and shall use every
precaution to prevent damage to pipes, conduits and other underground structures, curbs,
pavements, etc., except those to be removed or abandoned in place and shall protect
carefully from disturbance or damage all monuments and property marks until an
authorized agent has witnessed or otherwise referenced their location and shall not
remove them until directed. Any damage which occurs by reason of the operations under
this Agreement shall be completely repaired by Peterson at Peterson's expense.
16.Peterson shall shore, brace, underpin, secure, and protect, as may be necessary, all
foundations and other parts of existing structures adjacent to, adjoining, and in the
vicinity of the site that may be affected in any way by excavations or other operations
connected with the Work contained in this Agreement. Peterson shall be responsible for
the giving of any and all required notices to any adjoining or adjacent property owned or
other party before commencement of any Work. Peterson shall indemnify and save the
Town harmless from any damages on account of settlements or loss of all damages for
which the Town may become liable in consequence of such injury or damage to adjoining
and adjacent structures and their premises.
17.Peterson shall identify to the Town at least one on-site person who is Peterson's
competent, qualified, and authorized person on the worksite and who is, by training or
experience, familiar with policies,regulations and standards applicable to the Work being
performed. The competent, qualified and authorized person must be capable of
identifying existing and predictable hazards in the surroundings or working conditions
which are unsanitary,hazardous or dangerous to employees, shall be capable of ensuring
that applicable safety regulations are complied with, and shall have the authority and
responsibility to take prompt corrective measures, which may include removal of
Peterson's personnel from the work site.
18.Peterson shall provide to the Town, a copy of Peterson's or its general contractor's
written safety policies and safety procedures applicable to the Work within seven (7)
days after the issuance of the Notice to Proceed.
27