02-21-2012 BOS Adjourned Meeting~~
~®AR~ PAC~cE~
BOARD OF SUPERVISORS
1~l~JOURNEI~ 1VIEE'I'II~TG
FEPRUARY 21, 2012
a
1767
PITTSYLVANIA COUNTY BOARll OF SUPERVISORS
ADJOURNEll MEETING
TUESllAY, February 21, 2012
7:00 P.M.
GENERAL DISTRICT COURTROOM
EDWIN R. SHIELDS COURTEIOUSE ADDITION
CHATHAM, VA 24531
AGENDA
Call to Order 7:00 p.m.
2. Roll Call
3. Pledge of Allegiance
4. Items to be added to the Agenda
(a) Gretna -Certificate of Need -Pages 8-9
(b) Upon adjournment of this regular adjourned meeting, the Board will
reconvene in the County Administrator's office for a Closed Meeting
Conference Call for:
Consultation avith Legal Counsel and 13rieftngs by Staff Members or Consultants
pertaining to actual or probable litigation, where such consaltcrtions or hrieJings in
open meeting would adversely affect the negotinting or litigation poshn•e of the
Public Body; ctnd consultation with Legcrl Counsel employed or retained by a Public
Body regarding specif c legal matters requiring provision of legal advice by such
Counsel.
Authority: §2.2-371 l(A) (7) Code of Virginia, 1950, as amended
Subject Matter: Jane Doc vs. Pittsylvania County
Purpose: Briefing on Litigation Status
APPROVAL OF AGENDA
HEARING OF THE CITIZENS
CONSENT AGENDA
5(a) Proclamation- Virginia Agriculture Week/Virginia Agriculture Literacy Week
March 4-] 0, 2012 -Pages 12-13
(b) Regional One -March - Pnge 14
PUBLIC HEARINGS
Rezoning Cases
Case 1: Gary N. Duren & Andrea H. Duren -Westover District; R-I2-005
(A-l, Agriculturol Distract to R-1, Residential Snburbnn Distric•O
Case 2: Withdrawn - R-12-006
Case 3: Climax Community Center, LLC - Callands/Gretna District; R-12-007
(R-l, Residential Suburban Subdivision District to B-2, Business Dish•ict, General)
UNFINISHED BUSINESS
6. Danville Humane Society Additional Appropriation - At the February 6, 2012 Bocard of
,Supervisors meeting, a motion was made by Mr. Hcu•ville, seconded by Mr. Snead that
required a 10-Day Layover drat has notiv been met -Pages 17-/8
7. Comprehensive Services Act (CSA) -School Appropriation - At the February 6, 2012 Board
of Supervisors meeting, cr motion was rrrnde by Ms. Bowman, seconded by t~(r. Bcrrksdcde that
required a 10-Day Layover that hers now been met -Pages 19-20
8. Expenditure Refund - At the February 6, 2012 Board of Supervisors meeting, a motion was
mode by Mr. Ecker, seconded by Mr•. Sneed that required a 10-Day Layover that has now
been met- Pages 21-2d
NEW BUSINESS
9. Presentation by Smart Beginnings -Proclamation for "School Readiness Month"
-Pcrges 26-29
10. Recommendations from Finance Committee -Committee will have rnet al 5:00 pm on
February 2/, 2012-Pages 30-31
(a) Review County Administrator's Recommended Budget
l l . Approval of Final Finance - E911 Equipment Upgrades -Pages 32-97
12. Bid Award - Pittsylvania County Landfill Facility, Permit No. 571; Phase II Cell B
Construction -Pages 98-100
13. Award Contract -Proposal for Quality Assurance/Quality Control (QAQC) Services-
Pittsylvania County Landfill Facility, Permit No. 571-Phase II Cell BConstruction -
Pages 101-110
14. Award Bid - Klopman Waterline Extension -Pages 111-/ /3
15. n.. ,..a ~,...«...,.. ~.,..«,.:., n,r,..:.. ^„ua;.,,, n,,.,,....«:,..,., _ To be Struck from Agenda
16. Request Use of County Property -Proposed Police Memorial Service -Pages 111-11 S
17. Rescue Billing Appropriation - Requires a rnotiorr mrrt a 10-Day Layover -Page 116
l8. Community Foundation - Firc Grant - Requires a Rol! Cnll Vote - Pcrge 1l7
19. Ferry Road Waterline Project - Mc Harville -Page 118
APPOINTMENTS BY THE BOARD
20. Appointment -Local Blectcd Officials (LEO) Chairman of the Board or Flis Appointee -
Page 120
21. Appointments to the Beautification Committee; Westover District Representative -
Grady Carrigan; Staunton River District Representative -Jackie Forrest -Page l21
22. Appointment to Planning Commission -Westover District Pages /22-123
BOARD ANNOUNCEMENTS
REPORTS FROM LEGAL COUNSEL
REPORTS FROM COUNTY ADMINISTRATOR
23. Report on Swedwood Rail Contract -Pages 127-! 65
24. Animal Control Activity Report - Pages 166-168
CLOSED SESSION
25. Closed Meeting: Discussion of performance and salaries of employees of any public body;
and evaluation of performance of departments where such evaluation will necessarily involve
discussion of the performance of specific individuals.
Authority: §2.2-3711(A)(1) Code of Virginia, 1950, as amended
Subject: County Administration
Purpose: Discussion of performance and salaries of employees of any public body
ADJOURNMENT
TO BE ADDED
P7
PITTSYLVANIA COUNTY
Board of Supervisors
EXECUTIVE SUMMARY
AGENDA TITLE:
Certificate of Need Gretna, Virginia
AGENDA DATE:
02-21-2012
ITEM NUMBER:
4(a)
SUBJECT/PROPOSAL/ItEOUEST:
Review of Resolution
STAFF CONTACT(S):
Mr. Sleeper
ACTION:
Yes
CONSENT AGENDA:
ACTION:
ATTACHMENTS:
Yes
REVIEWED BY:
INFORMATION:
INFORMATION:
BACKGROUND:
At the regular meeting of the Pittsylvania County Board of Supervisors on Monday, February 6, 2012, the Board of
Supervisors passed Resolution 2012-02-OS in support of a Certificate of Need in the Gretna community.
DISCUSSION:
The Chairman of the Board of Supervisors has requested that the Board review the current status of this resolution
and the Certificate of Need request for the Gretna community.
RECOMMENDATION:
Staff submits this to the Board of Supervisors for their review and consideration.
Pe
PITTSYLVANIA COUNTY BOARD OF SUPERVISORS
RESOLUTION
2012-02-OS
VIRGINIA: At a regular meeting of the Pittsylvania County Board of Supervisors on
Monday, February 6, 2012 in the General District Courtroom of the Edwin R. Shields
Courthouse Addition the following resolution was presented and adopted:
WHEREAS, the Pittsylvania County Board of Supervisors feels there is a
significant need in their county for a medical service center; and
WHEREAS, the Pittsylvania County Board of Supervisors during the
development of a comprehensive plan for the future of Pittsylvania County realized a
need f'or a emergency and regular medical caze facilities to be located in the urbanizing
areas of Pittsylvania County, included but not limited to the incorporated azeas of the
Towns of Chatham, Gretna, and Hurt; and
WHEREAS, Centra Health of Lynchburg, Virginia has expressed a desire to
expand their medical services facilities south to the area of Gretna, Virginia; and
WHEREAS, Pittsylvania County, the largest County in Virginia in land area, lies
between Lynchburg and Danville, and has no outpatient surgery or 24 hour emergency
center within its boundaries; therefore
BE IT HEREBY RESOLVED, by the Pittsylvania County Boazd of Supervisors
that they respectfully request Centra Health to consider the location for its medical
service facility in Pittsylvania County, including the incorporated towns of Chatham,
Gretna, and Hurt; and
BE IT FURTHER RESOLVED, the Pittsylvania County Board of Supervisors
pledges their support and agrees to work in partnership with Centra Health to apply and
approve the Certificate of Need necessary to provide this facility to service the citizens of
Pittsylvania County, Halifax County, Henry County, and the Cities of Martinsville and
Danville.
Vote: Jerry A. Hagerman -Yes Marshall A. Ecker -yes
Brenda H. Bowman - Yes Jessie L. Bazksdale -Yes
Coy E. Harville - Yes James H. Snead - Yes
Tim R. Barber - Yes
Given under my hand this 6th day of Februayy, 2012.
.~~ , ~ ~~~
Tim R. Bazbe ,Chairman
Pittsylvani~ounty Board of Supervisors
William D. Sleeper,~lerk
Pittsylvania County Board
P9
HEARING OF
CITIZENS
P10
CONSENT
AGENDA
P11
PITTSYLVANIA COUNTY
Board of Supervisors
EXECUTIVE SUMMAKY
AGENDA TITLE:
Proclamation- Virginia Agriculture Week/Virginia
Agriculture Literacy Week -March 4-10, 2012
AGENDA DATE:
02-21-2012
ITEM NUMBER:
5(a)
ACTION:
INFORMATION:
SUBJECT/PROPOSAL/REQUEST:
Proclamation of Support
STAFF CONTACT(S):
CONSENT AGENDA:
ACTION:
Yes
INFORMATION:
Mr. Sleeper
ATTACHMENTS:
Yes
KEVIEWED BY:
BACKGROUND:
The Board of Supervisors has passed various proclamations in the past supporting Agriculture Week and its
associated events throughout Pittsylvania County.
DISCUSSION:
Attached hereto, is a proclamation declaring March 4-10, 2012 as Virginia Agriculture Week/Virginia Agriculture
Literuev Week throughout Pittsylvania County.
RECOMMENDATION:
Staff recommends the Board of Supervisors approve the proclamation declaring the week of March 4-10, 20 ] 2 as
Agriculture Week/Agriculture Literacy Week throughout Pittsylvania County and direct the County Administrator
to forward a copy of the proclamation to all local media sources.
aiz
PITTSYLVANL4 COUNTY BOARD OFSUPERVISORS
PROCLAMATION
NATIONAL AGRICULTURE WEEK/NATIONAL AGRICULTURE LITERACY WEEK
March 4`~-10th, 2012
"FROM OUR FIELDS... TO YOU"
WHEREAS, agricultural development in Pittsylvania County is one of the major economic resources
of the County and ranks in the top 10 of Agribusiness Counties in the Commonwealth; and
WHEREAS, The Virginia Department of Agriculture and Consumer Services suggests this a perfect
opportunity to give credit to the farmers of our state and county; and
WHEREAS, Agriculture Week is an important celebration in Virginia because agriculture is the
Commonwealth's largest industry that contributes $55 billion to the state's economy each year, and over $62
million in agriculture receipts based on crops and livestock in Pittsylvania County; and
WHEREAS, agriculture in the Commonwealth is a diversified industry with products encompassing
livestock, field crops, fruits, vegetables, poultry, dairy, aquaculture, vineyards, and more; and the mild
climate and rich soil of Virginia provide an environment in which are crops harvested neazly year-around;
and
WHEREAS, every Virginian should understand how food, fiber and renewable resource products are
produced and should value the essential role of agriculture in maintaining a strong economy, and appreciate
the role Virginia agriculture plays in providing safe, abundant, and affordable products; and
WHEREAS, because only two percent of the population is engaged in production agriculture, basic
knowledge about and experience with the industry is on the decline, the Agriculture in the Classroom
Foundation is sponsoring Agriculture Literacy Week to increase knowledge about agriculture with reading
programs to children in kindergarten through Grade 2; then
BE IT HEREBY PROCLAIMED by the Pittsylvania County Boazd of Supervisors that the week of
March 4th through March 10th, 2012 be proclaimed "National Agriculture Week-National Agriculture
Literacy Week" in Pittsylvania County and all citizens of Pittsylvania County are encouraged to thank a
farmer for the products they provide which enrich our daily lives and urges parents, grandparents, and
educators to inform young children on the importance of local agriculture and how it enriches all of our lives.
Given under my hand this 2151 day of February, 2012.
Tim R. Barber, Chairman
Pittsylvania County Board of Supervisors
William D. Sleeper, Clerk
Pittsylvania County Board of Supervisors
P13
PITTSYLVANIA COUNTY
Board of Supervisors
EXECUTIVE SUMMARY
AGENDA TITLE:
AGENDA DATE:
2-21-12
ITF,M NUMBER:
5(b)
Consent Agenda: Regional One-March
SUB.IECT/PROPOSAL/REQUEST:
Approval of Contract Payment to Regional One for
March 2012
STAFF CONTACT(S):
ACTION:
CONSENT AGENDA:
ACTION:
Yes
INFORMATION:
INFORMATION:
ATTACHMENTS:
No
REVIEWED BY: /~/ /~ /
BACKGROUND:
At an adjourned meeting, December 22, 2008, the Board of Supervisors approved to begin paying Regional One
for back-up ambulance service to the County. At that time, the Board requested that payment to Regional One be
approved on a monthly basis. A total of $70,000 has been appropriated for Regional One in the 2012 Budget,
which will cover Regional One's monthly cost for the entire budget year.
DISCUSSION:
It is time to approve payment for Regional One for the month of March. "the amount due to Regional One is
$5,833.33 per month. Phis amount has already been appropriated in the FY2012 budget.
RECOMMENDATION:
Staff recommends that the Board of Supervisors approve $5,833.33 for payment to Regional One for March
2012.
P14
PUBLIC HEARING
P15
UNFINISHED
BUSINESS
P16
PITTSYLVANIA COUNTY
Board of Supervisors
EXECUTIVE SUMMARY
AGENDA TITLE:
AGENDA DATE:
2-21-12
ITEM NUMBER:
6
Danville Humane Society -Additional Appropriation- ACTION:
Motion made by Mr. Harville, seconded by Mr. Snead Yes
and has now met the 10-day layover requirement
SUBJECT/PROPOSAL/REOUESTs
Humane Society Additional Appropriation
STAFF CONTACT(S):
CONSENT AGENDA:
ACTION:
ATTACHMENTS:
Yes
REVIEWED BY:
INFORMATION:
INFORMATION:
BACKGROUND:
In June of 2007, the City of Danville sent notice to Pittsylvania County of an annual cost for operations of the
Danville Area Humane Society wherein a significant number of animals were being cared for from residents
of Pittsylvania County. Currently, the Board of Supervisors pays $3,950.00 per month to the Danville
Humane Society for this service. Phis amount has remained unchanged since 2007.
DISCUSSION:
The 2011-2012 budget has a total of $40,000 budgeted for the Danville Humane Society. An additional
$7,400 is needed to cover the amount required by Danville Humane Society.
RECOMMENDATION:
Staff recommends that the Board of Supervisors appropriate an additional $7,400.00 to the Animal Control
Budget (100-4-035100-5850). MOTION MADE BY MR. HARVILLE, SECONDED BY MR. SNEAD
AND HAS NOW MET THE 10-DAY LAYOVER REQUIREMENT. REQUIRES A ROLL CALL VOTE.
P17
PITTSYLVANIA COUNTY
Board of Supervisors
EXECUTIVE SUMMARY
AGENDA TITLE:
AGENDA DATE:
2-06-12
ITEM UMBER:
16
Danville Humane Society -Additional Appropriation-
Regalres aMotion and a 10-day layover
SUBJECT/PROPOSAL/REOUEST:
Humane Society Additional Appropriation
STAFF CONTACT(S):
ACTION:
Yes
CONSENT AGENDA:
ACTION:
ATTACHMENTS:
No
INFORMATION:
INFORMATION:
BACKGROUND:
In June of 2007, the City of Danville sent notice to Pittsylvania County of an annual cost for operations of the
Danville Area Humane Society wherein a significant number of animals were being cared for from residents
of Pittsylvania County. Currently, the Boazd of Supervisors pays $3,950.00 per month to the Danville
Humane Society for this service. This amount has remained unchanged since 2007.
DISCUSSION:
The 2011-2012 budget has a total of $40,000 budgeted for the Danville Humane Society. An additional
$7,400 is needed to cover the amount required by Danville Humane Society.
RECOMMENDATION:
Staff recommends that the Board of Supervisors appropriate an additional $7,400.00 to the Animal Control
Budget (100-4-035100-5850). THIS ITEM REQUIRES A MOTION AND A 10-DAY LAYOVER.
.P18
PITTSYLVANIA COUNTY
Board of Supervisors
EXECUTIVE SUMMARY
AGENDA TITLE:
AGENDA DATE:
2-21-12
Comprehensive Services Act (CSA)-School ACTION:
Appropriation-~Llotion made by Ms. Bowman, Yes
seconded by Mr. !3m•ksdnle and has now met the 10-
day layover requirement
SUBJECT/PROPOSAL/REQUEST:
Appropriation of CSA Expenditures to the School
Fund (Fund 205)
STAFF CONTACT(S):
CONSENT AGENDA:
ACTION:
ATTACHMENTS:
Yes
REVIEWEll BY
ITEM NUMBER:
7
INFORMATION:
INFORMATION:
BACKGROUND:
At the 8-17-10 adjourned meeting of the Board of Supervisors, the Board unanimously voted to cease paying
for private day placements for the Comprehensive Services Ac[ until the CSA audit was complete. Upon
completion of this audit, the Board also decided that it was in the best interest of the County to allow the
Schools to continue to upfront CSA expenditures and be reimbursed by the County. The Schools did not
budget for this expenditure in their PY 2012 budget.
DISCUSSION:
Currently an appropriation exists in the General Fund to reimburse the Schools for their CSA costs; however,
the expenditure on the Schools side has not yet been appropriated. "I'he estimate for the remaining six months
of FY 2012 totals $1,400,000. Of this amount, $329,700 represents local funds and $1,070,300 represents
state funds. 'These funds need to be appropriated on the Schools side to offset their CSA expenditure. Please
remember that the County makes no reimbursement to the Schools without confirmation that the County has
received state funds. The local portion above has already been accounted for in the CPMB budget.
RECOMMENDATION:
Staff recommends that the Board of Supervisors consider an appropriation of $1,400,000 to the School Fund
(Fund 205) to cover CSA expenditures. MOTION MADE BY MS. BOWMAN, SECONDED BY MR.
BARKSDALE AND HAS NOW MET THE 10-DAY LAYOVER REQUIREMENT. REQUIRES A ROLL
CALL V01'E.
P19
NITTSYLVAN[A COUNTY
Board of Supervisors
EXECUTIVE SUMMARY
AGENDA TITLE:
AGENDA DATE:
2-06-12
ITEM UMBER:
17
Comprehensive Services Act (CSA)-School
Appropriation-Requires a Motion and a l0-Day
Layover
SUBJECT/PROPOSAL/KEOUESTs
Appropriation of CSA Expenditures to the School
Fund (Fund 205)
STAFF CONTACT(S):
ACTION:
Yes
CONSENT AGENDA:
ACTION:
ATTACHMENTS:
No
REVIEWED BY:
INFORMATION:
INFORMATION:
BACKGROUND:
At the 8-17-10 adjourned meeting of the Board of Supervisors, the Board unanimously voted to cease paying
for private day placements for the Comprehensive Services Act until the CSA audit was complete. Upon
completion of this audit, the Board also decided that it was in the best interest of the County to allow the
Schools to continue to upfront CSA expenditures and be reimbursed by the County. The Schools did not
budget for this expenditure in their FY 2012 budget.
Currently an appropriation exists in the General Fund to reimburse the Schools for their CSA costs; however,
the expenditure on the Schools side has not yet been appropriated. The estimate for the remaining six months
of FY 2012 totals $1,400,000. Of this amount, $329,700 represents local funds and $1,070,300 represents
state funds. These funds need to be appropriated on the Schools side to offset their CSA expenditure. Please
remember that the County makes no reimbursement to the Schools without confirmation that the County has
received state funds. The local portion above has already been accounted for in the CPMB budget.
RECOMMENDATION:
Staff recommends that the Board of Supervisors consider an appropriation of $1,400,000 to the School Fund
(Fund 205) to cover CSA expenditures. REQUIRES A MOTION AND A 10-DAY LAYOVER.
P20
PITTSYLVANIA COUNTY
Board of Supervisors
EXECUTIVE SUMMARY
AGENDA DATE:
AGENDA TITLE: 2-21-12
Expenditure Refunds-iLiotion made by iLfi~. Esker, ACTION:
seconded by ~Ltr. Snead and has now met the !0-day Yes
layover requirement
CONSENT AGENllA:
SUBJECT/PROPOSAL/REQUEST: ACTION:
Budget Amendment Eor expenditure refunds
ATTACHMENTS:
Yes
REVIEWED BY:
STAFF CONTACT(S):
ITEM NUMBER:
8
INFORMATION:
INFORMATION:
BACKGROUND:
DISCUSSION:
Attached is a list of expenditure refunds for the month of January, 2012 for review. As discussed earlier with
the Board, the simple routine of putting every refund back in the budget is extremely time consuming and
leaves room for errors. To stay in balance with the Treasurer, we need to reappropriate refunds into the
budget so the budget would increase with every expenditure refund.
RECOMMENDATION:
Staff recommends the reappropriation of funds as follows: $18.24 to Board of Supervisors-Telephone (100-
4-011010-5230), $295.00 to Board of Supervisors-Training (100-4-011010-5540), $60.00 to Sheriff-Parts
(100-4-031200-6030), $1,000.00 to Sheriff-Canine Program (100-4-031200-6045), $85.64 to Jail-
Professional Services (1 00-4-033 1 00-3 1 1 0), $202.68 Extradition (100-4-033100-5550), $20.00 to VFD-
Fuels (100-4-032200-6008), $35.00 to Animal Control-Donations (100-4-035100-5883), $260.00 to Library-
Postage, $2,460.65 to Library-Computer Supplies (1 00-4-073 1 00-602 1), $7,324.11 to WIA-Rent (251-4-
353160-5420). MOTION MADE BY MR. ECKER, SECONDED BY MR. SNEAD AND HAS NOW MET
THE 10-DAY LAYOVER REQUIREMENT. REQUIRES A ROLL CALL VOTE.
P21
P[TTSYLVANIA COUNTY
Board of Supervisors
EXECUTIVF. SUMMARY
AGENDA TITLE:
AGENDA DATE:
2-06-12
ITEM NUMBER:
IS
Expenditure Refunds-Requires a Motion and a l U-
Day Layover
SUBJECT/PROPOSAL/REOU EST:
Budget Amendment for expenditure refunds
STAFF CONTACT(S):
ACTION:
Yes
CONSENT AGENDA:
ACTION:
ATTACHMENTS:
Yes
REVIEWED BY:
INFORMATION:
INFORMATION:
BACKGROUND:
DISCUSSION:
Attached is a list of expenditure refunds for the month of January, 2012 for review. As discussed earlier with
the Board, the simple routine of putting every refund back in the budget is extremely time consuming and
leaves room Cor errors. To stay in balance with the "Treasurer, we need to reappropriate refunds into the
budget so the budget would increase with every expenditure refund.
Staff recommends the reappropriation of funds as follows: $18.24 to Board of Supervisors-Telephone (100-
4-011010-5230), $295.00 to Boazd of Supervisors-Training (100-4-011010-5540), $60.00 to Sheriff=Parts
(100-4-031200-6030), $1,000.00 to Sheriff-Canine Program (100-4-031200-6045), $85.64 to Jail-
Professional Services (100-4-0331.00-3110), $202.68 Extradition (100-4-033100-5550), $20.00 to VFD-
Fuels (100-4-032200-6008), $35.00 to Animal Control-Donations (100-4-035100-5883), $260.00 to Library-
Postage, $2,460.65 to Library-Computer Supplies (100-4-073100-6021), $7,324.11 to WIA-Rent (251-4-
353160-5420). REQUIRES A MOTION ANU A 10-DAY LAYOVER.
^PZz
PITTSYLVANIA COUNTY
VIftGI1VIA
Finance Department
P.O. Box 426
Chatham, Virginia 24531
MEMO TO: William D. Sleeper, County Administrator
FROM: Kim Van Der Hyde
Finance Director
SUBJECT: January Expenditure Refunds
DATE: February 2, 2012
Phone 1434) 432.7740
Fax (4341432-7746
Gretna/Rnrt (4341636-6211
Bachelors Hall/tAhitmen (434) 797-9550
The list below shows all expenditure refunds that were sent to the Finance Department
during the month of January. tam recommending that all of the following expenditure
refunds be reappropriated by the Board of Supervisors:
100-4-011010-5230 BOS-Telephone 18.24
Reimbursement
100-4-011010-5540 BOS-Training 295.00
Reimbursement
100-4-031200-6030 Sheriff-Parts 60.00
Restitution
100-4-031200-6045 Sheriff-Canine Program 1,000.00
ponation
100-4-033100-3110 Jail-Professions{ Services 85.64
Insurance Reimbursement
100-4-033100-5550 Extradition 202.68
100-4-032200-6008 VFD-Fuels 20.00
Reimbursement
100-4-035100-5883 Animal Control-llonations 35.00
Donation
P23
100-4-073100-5210 Library-Postage 260.00
Friends of the Library Donation
100-4-073100-6021 Library-Computer Supplies 2,460.65
Foundation Check
251-4-353160-5420 WIA-Rent 7,324.11
Reimbursement
(251-3-000000-]50201)
TOTAL EXPENDITURE REFUNDS - JAN $ 11,761.32
'P24
NEW B6JSdNESS
P25
PITTSYLVANIA COUNTY
Board of Supervisors
EXECUTIVE SUMMARY
AGENDA TITLE: AGENDA DATE:
Presentation from Smart Beginnings; Proclamation on 02-21-2012
School Readiness Month -March 2012
SUB.IECT/PROPOSAL/REO UEST:
Presentation;
Proclamation
ACTION:
Yes
CONSENT AGENDA:
ACTION:
STAFF CONTACT(Sl:
Mr. Sleeper
ATTACHMENTS:
Ycs
KEVIEWEll BY:
ITEM NUMBER:
9
INFORMATION:
INFORMATION:
BACKGROUND:
The Board of Supervisors has passed various proclamations and resolutions in the past, supporting school readiness
and educational events throughout Pittsylvania County.
DISCUSSION:
Ann Stratton, Executive Director, and Russell Carter, Public Engagement Coordinator, for Smart Beginnings will
give a short presentation on upcoming County events coordinated with "Countdown to Kindergarten". Attached
hereto, is a proclamation declaring March 2012 as "Schoo/ Readiness Month " in Pittsylvania County.
RECOMMENDATION:
Staff recommends the Board of Supervisors approve the proclamation declaring March 2012 as School Readiness
Month in Pittsylvania County and direct the County Administrator to forwazd a copy of the proclamation to aII local
media sources.
P26
S M A R T ke•.u(y (,~r ~ ~,,.,~.
kradr inr Lik.
[iEGINNINGS
Danville Pitts}rlvania
February 2, 2012
FOR IMMEDIATE RELEASE
Contact: Ann Vandervliet Stratton, Executive Director, (434) 797.8887
Smart Beginnings launches "Countdown to Kindergarten"
DANVILLE and PITTSYLVANIA COUNTY- For the first time ever, Danville Public Schools and Pittsylvania
County Schools will begin early registration for kindergarten on March 16, 2011. "When a parent
registers a child early for kindergarten it is a sign that they are thinking about the exciting and sometime
challenging transition to elementary school. There is so much that parents and caregivers can do
between March and August to prepare a child for success in kindergarten."
Smart Beginnings launches its "Countdown to Kindergarten' campaign today. Several activities will take
place to encourage early registration for kindergarten and to grow parents awareness about school
readiness.
• Pittsylvania County Board of Supervisors expected to pass a proclamation naming March
"School Readiness Month," Feb. 21
• A "Countdown to Kindergarten' event at Danville Family YMCA, March 3, 9 am -12 pm
• Danville City Council expected to pass a proclamation naming March "School Readiness Month;'
March 6
• Early registration begins March 16 at all elementary schools in Danville and Pittsylvania County.
• Several print and radio advertisements to between February and March
Here is what parents or caregivers need to know:
• Elementary schools are special places and they are excited to welcome you.
• Children who register on March 16 will receive a bag of school readiness materials and a healthy
snack from Smart Beginnings.
• Bring a valid drivers license or other state issued photo ID.
• Bring your child's social security card.
• The child's official birth certificate. It takes 6-8 weeks to order one. For more information call
(804) 662-6200 or visit www.virainiabirthcertificate.com. The cost is $12.
• Proof of residency (examples: a phone bill or lease agreement)
P27
• Current immunization record (shots must be up to date). Make an appointment with your
doctor or call the Health Department in Danville at 799-5190 or in Chatham at 432-7232.
If you are not sure what school your child will attend, call the Pittsylvania County Schools at 432-
2761 if you live in the County. Call the Danville Public Schools at 432-2761 if you live in the City.
"When children register early for school, it also helps school administrators to plan for the next year and
be prepared to meet the individual needs of your child," adds Ann Vandervliet Stratton, executive
director, Smart Beginnings Danville Pittsylvania. "And, if the family has enough time to start talking
about and preparing a child for a smooth transition to 'big school' it is less stressful," she adds.
Tips for parents:
• Schedule a visit or tour of your child's elementary school.
• Practice waking up and going to bed at the same time every day.
• Read a book together every day.
• If your child has not been around other children, go to a playground and let him or her spend
time with other kids.
• Go to your doctor for routine wellness check.
• If you suspect that your child is somehow "different" than other children. The way he or she
speaks or acts, tell your doctor about it right away. Many developmental delays, if treated early,
can be corrected.
• Even if you experienced difficulty in school, try to focus on positive aspects (an opportunity to
make new friends, have fun and learn about the world)
The mission of Smart Beginnings is to ensure that all children are ready for success in school and in life.
Smart Beginnings Danville Pittsylvania is one of twenty nine coalitions in VA. For more information on
either the VSQI or Smart Beginnings, call 797-8887 or email info@SmartBeginningsDP.org.
##q#
P28
PITTSYLVANIA COUNTY BOARD OF SUPERVISORS
PROCLAMATION
SCHOOL READINESS MONTH
MARCH 2012
Whereas, on average, one in seven children in Pittsylvania County, Virginia
will enter kindergarten without the basic skills needed to succeed in school; and
Whereas, early childhood represents a once in a lifetime opportunity to
positively impact our children and our communities and the first five years of life
create the physical, cognitive, social and emotional foundation for school readiness;
and
Whereas, children who have a variety of quality early childhood experiences
with parents, caregivers, and teachers begin school healthy and ready programs to
learn, and are able to grow into engaged, educated citizens; and
Whereas, when a parent registers a child early for kindergarten it is s sign
that they are thinking about the exciting and sometimes challenging transition to
elementary school; and
Whereas, studies confirm that every $1 invested in early childhood education
can yield returns as high as $16 through higher academic achievement, and lower
rates of grade retention, remedial services, school failure, criminal behavior and
welfare dependence; then
Now, Therefore, the Pittsylvania County Board of Supervisors do hereby
proclaim March 2012 as School Readiness Month in Pittsylvania County, Virginia
and encourage parents of kindergarten age children throughout Pittsylvania County
to participate in the early registration for kindergarten event on March 16, 2012 .
Given under my hand this 6th day of February 2012.
Tim R. Barber, Chairman
Pittsylvania County Board of Supervisors
William D. Sleeper, Clerk
Pittsylvania County Board of Supervisors
P29
PITTSYLVANIA COUNTY
Board of Supervisors
EXECUTIVE SUMMARY
AGENDA TITLE:
Recommendations from Finance Committee
AGENDA DATE:
02-21-2012
ITEM NUMBER:
10
SUBJECT/PROPOSAL/REQUEST:
Recommendations from Committee
STAFF CONTACT(S):
Mr. Sleeper
ACTION:
No
CONSENT AGENllA:
ACTION:
ATTACHMENTS:
Yes
INFORMATION:
INFORMATION:
BACKGROUND:
It is the requirement trom the Code of V irginia that the County Administrator submit a recommended budget to the
local governing body for their review and consideration for the ensuing year, including any necessary tax
recommendations and/or ordinance changes.
DISCUSSION:
The Finance Committee of the Board of Supervisors will meet at S:OOpm on "fuesday, February 21, 2012 and
receive a recommended budget from the County Administrator to the Board of Supervisors. The budget is
recommended through the Finance Committee but it meets the criteria of the State Code. "Phis year is exceedingly
difficult in that the current revenues and expenditures are $5,520,551 short between revenues and expenditures.
The largest burden of this shortage is due to changes and mandates submitted by the Commonwealth of Virginia to
Pittsylvania County. Currently the County has $2.9 million of proposed new mandates in the 2012 budget. This
may change based on current activities in the General Assembly. So of these actions could benefit Pittsylvania
County and reduce this burden.
RECOMMENDATION:
Recommendations will be submitted to the Board of Supervisors ifthere is action taken by the Finance Committee
concerning a budget submission to the Board. However, normally the Finance Committee does not submit a
request to the Board until it is time to call a public hearing on a recommended budget.
P30
FINANCE COMMITTEE
Pittsylvania County Board of Supervisors
Tuesday, February 21, 2012
5:00 pm
Conference Room
Captain Martin Building
1 Center Street
Chatham, Virginia
AGENDA
1. Call to Order 5:00 pm
2. Roll Call
3. Approval of Agenda
4. New Business
(a) Review County Administrator's Recommended Budget
5. Adjournment
P31
PITTSYLVANIA COUNTY
Board of Supervisors
EXECUTIVE SUMMARY
AGENDA TITLE:
Approval of Pinal Financing - E911 Equipment
Upgrades
AGENDA DATE:
02-21-2012
ITEM NUMBER:
11
S UBJECT/PROPOSAL/REO UEST:
Approval of Resolutions for Final Financing - E911
Equipment Upgrades
ACTION:
Yes
CONSENT AGENDA:
ACTION:
STAFF CONTACT(S):
Mr. Sleeper
ATTACHMENTS:
Yes
REVIEWED BY:
INFORMATION:
INFORMATION:
BACKGROUND:
Upon the recommendation of the Computer/Radio/Telecommunications Committee of the Board of Supervisors,
the Board has selected to purchase new equipment for the E911 system to meet federal requirements and to provide
the necessary communication in the County. The County has selected I Iarris Equipment to provide the necessary
communication equipment and Bank of America for proposed financing.
DISCUSSION:
Attached hereto, you will find the required resolutions from bond counsel concerning the final requirements for the
financing and the lease agreement on the E911 system for Pittsylvania County. Staff recommends the Board of
Supervisors; 1) approve the resolution, authorizing and approving the execution and delivery of the Master
Equipment Lease Agreement, and; 2) a resolution authorizing and approving the execution and delivery of a
Management Contract.
RECOMMENDATION:
Staff recommends the Board of Supervisors approve all necessary resolutions required for this financing and
management contract, as well as authorizing the County Administrator to sign all necessary documentation for
the closure of this lease agreement.
P32
Feb 13, 2012 8:58 am Prepared by Davenport & Company LLC
(Finance 6.022 Pittsylvania: E91 I PP-BA l
TABLE OF CONTENTS
Pittsylvania Counry
E911 Fquipment Lease-2012
12 Year Term / 2.50% Interest Ra[e
Wilh Capitalized Interest
Prcliminarv Numbers
Report
Sources and Uses of Funds
Bond Summary Statistics
Bond Debt Service
Net Debt Service
Form 8038 Statistics
Page
P33
Peb 13, 2012 8:58 am Prepared by Davenport & Company LLC (Finance 6.022 Pittsylvania:E911PP-BAI) Page I
SOURCES AND USES OF FUNDS
Pittsylvania Counry
E911 Equipment Lease - 2012
12 Year Term / 2.50°/ Interest Rate
With Capitalized Interest
Preliminary Numbers
Dated Date 02Y2312012
Delivery Date 02/23/2U12
Sources:
Bond Proceeds:
Par Amount 13,460,950.00
13,460,950.00
Uses:
Project Fund Deposits:
Project Fund 13,000,000.00
Other Fund Deposits:
Capitalized Interest Fund 350,094.51
Delivery Date Expenses:
Cost of Issuance \ 10,850 00
Other Uses of Funds:
Additional Proceeds 5.49
13,460,950.00
Note: Preliminary Numbers, Subject to Change.
P34
Eeb 13, 2012 8.58 am Prepared by Davenpott & Company LLC (Finance 6.022 Pitts}'Ivania-E91 IPP-BAI) Page 2
BOND SUMMARY STATISTICS
Pittsylvania County'
E911 Equipment Lease- 2012
12 Year Term / 2.50% Interest Rate
With Capitalized Interest
Prehmmary Numbers
Dated Date 02/23/2012
Delivery Date 02/23/2012
Last Maturity 03/15/2024
Arbitrage Yield 2.499839%
True Interest Cast (71C) 2.499839%
Net Interest Cost (NIC) 2.500000%
All-In TIC 2.626466
Average Coupon 2.500000%
Average Life (years) 7.308
Duration of Issue (years) 6.621
Par Amount 13,460.950.00
Bond Pooceeds 13,460,950.00
Total Interest 2,45Q225.90
Net Interest 2,459,225.90
To[al DeM Service 15,920,175.90
Maximum Annual Debt Service 1,414,832 26
Average Annual Uebt Service 1,319,959.31
All-In Arbitrage
TIC l'IC Yield
Par Value 13,460 95000 13,460,950.00 13,460,950-00
+ Awrued Imerest
+ premium (Discount)
-Underwriter's Discou nt
- Cosl of Issuance Expense -I 10,550.00
-Other Amoun[s
Target Value 13,460,950.00 13,350,100.00 13,460,950.00
Target Date 02/23/2012 02/23/2012 02/23/2012
Yield 2.499839% 2.626466% 2.499839°
Note: Preliminary Numbers, Subject to Change.
P35
Feb 13, 2012 8:58 am Prepared by Davenport & Company LLC (Finance 6.022 Pittsylvania:E9I IPP-BAI) Page 3
BOND DEBT SERVICE
Pittsylvania County
E91I Equipment Lease-2012
12 Year Term / 2.50% Interest Rate
Wiih Capitalized Interest
Preliminary Numbers
Period
Ending
Principal
Coupon
Interest
Debt Service Annual
Debt Service
09/15/2012 188,827.22 188,827.22
03/1 S/2013 168,26 L88 168,261.88
06/30/2013 357,069.10
09/15/2013 168,261.88 168,261.88
03/15/2014 1,078,300 2.500% 168261.88 1,246,561.88
06/30/2014 1,414,823.76
09/15/2014 154,783.13 154,783.13
03/15/2015 1,105260 2.500% 154,783.13 1,260,043.13
06/30/2015 1,414,826.26
09/IS/2015 140,967.38 140,967.38
03/15/2016 1,132,890 2.500% 140,96738 1273,687.38
06/30/2016 1,414,824.76
09/152016 126,806.25 126,506.25
03/152017 1,161,210 2.500% 126,806.25 1,288,01625
06/302017 1,414,822.50
09/152017 112,291.13 112,291. I3
03/152018 1,190,280 2.500% 112291.13 1,302,541.13
06/30/2018 1,414,832.26
0911 812018 97,413.00 97,413.00
03/152019 1,220,000 2.500% 97,413.00 1,317,413.00
06/302019 1 414,826.00
09115/2019 82,163.00 82,163.00
03/152020 1,250,500 2500% 82,163.00 1,332,663.00
06/30/2020 1,414,826.00
09/15/2020 66,531.75 66,531.75
03/15/2021 1,281,760 2.500% 66,531.75 1,348,29175
06/30/2021 1,414,823.50
09/15/2021 50,509 75 50,509.75
03/15/2022 1,313,810 2.500% 50,509.75 1,364,319 7S
06130/2022 1,414,829.50
09/18/2022 34,087.13 34,087 13
03/15/2023 1,346,650 2.500% 34,087.13 1,380,737.13
06/30/2023 1,414,824.26
09/15/2023 17,254.00 17,254.00
03/18/2024 1,380,320 2.500% 17,254.00 1,397,574.00
06/302024 1,414,828.00
13,460,950 2,459,225.90 15,920,175.90 1S,92Q,175.90
Note: Prehmmary Numbers, Subjeci to Change
P36
Feb 13, 2012 8:58 am Prepared by Davenport & Company LLC (Finance 6.022 Pittsylvania:E91 IPP-BAl) Page 4
te
incipal
2
nterest NET DE[3T SERVICE
Pittsylvania Counry
E911 Equipmem Lease - 2012
Year Term /2.50% Interest Rate
With Capitalized Interest
Preliminary Numbers
Total Capitalized
Dcbt Service Interest Fund
et
Debt Service
nnual
Nel D/S
09/15/2012 188,827.22 188,827.22 188,827.22
03/1 S/2013 168,261.68 168,261.88 168,2ti 1.88
09/15/2013 168,261.88 168,261 88 168,261. 88
03/ 182014 1,078,300 168,261.88 1246,561.88 1,246,561. 88
06/30/2014 1,414,823.76
09/15/2014 154,783.13 154,783.13 154,783. 13
03/15/2015 1,105,260 154,783.13 L26Q04313 1160,043 13
06/30/2015 1,414,826.26
09/15/2015 140,967.38 14Q967.38 140,967. 38
03/18/2016 1,132,890 140,967.38 1,273,857.38 1,273,857 38
06/30/2016 1,414,824 76
09/18/2016 126,806.25 125,806.25 126,806 25
03/15/2017 1,161,210 126,806 2S 1,288,016 25 1,288,016 25
06/302017 1,414,822.50
09/15/2017 112,29113 112 91.13 112,291 13
03/15/2018 1,190,250 112,291.13 1,302,54 L13 1,302,541. 13
06/30/2018 1,414,832.26
09/1 S/2018 97,413 00 97,413.00 97,413. 00
03/15/2019 1,220,000 97,413.00 I?17,413.00 1,317,413. 00
06/30/2019 1,414,826.00
09/I S/20I9 82,163.00 82,163.00 82,163. 00
03/15/2020 1,250,500 82,163 00 1,332,663.00 1,332,663. 00
06/30/2020 1,414,826 f10
09/15/2020 66,831 75 66,531.75 66,531 75
03/15/2021 1,281,760 66,53175 1,348,291.75 1,348,291 75
06/30/2021 1,414,823.50
09/18/2021 50,509 7S SU,509 75 80,509 75
03/152022 1,313,810 50,509 75 1,364,319 75 1,364,319 75
06/30/2022 1,414,8?9.50
09/15/2022 34,087 13 34,067 13 34,087 13
03/152023 1,346,650 34,087 13 1,380,737 13 1,380,737 13
06/30/2023 1,414,82426
09/15/2023 17,254.00 17,254.00 17,284. 00
03/18/2024 1,380.320 17,254.00 1,397,874.00 1,397,874. 00
06/30/2024 1,414,828.00
13,460,950 2,459,22590 18,920,175.90 387,08910 15563,086. 80 15,563,086.80
Note: Preliminary Numbers, Subject to Change.
P37
Feb 13, 2012 8.58 am Prepared by Davenport & Company LLC
FORM 8038 STATISTICS
Pittsylvania County
E91 I Equipment Lease - 2012
12 Year Term / 2.50 % Interest Rate
W i[h Capitalized Interest
Preliminary Numbers
Dated Date 02/23(2012
Delivery Date 02/23/2012
Bond Component Date Principal Coupon Price
(Finance 6.022 Pi[tsylvania:E911 PP-BAI) Page>
Redemption
Issue Price at Maturity
Bond Component:
031152014 1,078,300.00 2.500% 100.000 1,078,300.00 1,07%,300. 00
03/152015 1,105.260.00 2.500% 100.000 1,105,260.00 1,105,260. 00
03/15/2016 1,132,890.00 2.500% 100.000 1,132,890.00 1,132,890. 00
03/182017 1,161,210.00 2.500% 1000D0 1,161,210.00 1,161,2!0. 00
03115/2018 1,190,250.00 2.500% 100.000 1,190,250.00 1,190,250. 00
03/18/2019 1,220,000.00 2.500% 100.000 1,220,000.00 1,220,000. 00
03/15/2020 1,250,500.00 2.500% 100.000 1,250,500.00 1,250,500. 00
03/152021 1,281,760.00 2.500% 100.000 1,281.760.00 1,281,760 .00
03/15/2022 1,313.810.00 2.500°/ 100.000 1,313,810.00 1,313,810 .00
03/18/2023 1,346,650.00 2.500% 100.000 1,346,650.00 1,346,650 .00
03/15/2024 1,380,320.00 2.500% 100.000 1,380,320.00 1,380,320 .00
13,460,950.00 13,460,950.00 13,460,950.00
Stated Weighted
Maturity Interest Issue Redemption Average
Date Rale Price at Maturity Maturity Yield
Final Maturity 03/15/2024 2.500% 1,380,320.00 1,380,320.00
Entire Issue 13,460,950.00 13,460,950.00 7.3077 2 4998%
Proceeds used for accrued interest
Proceeds used for bond issuance costs (including undervni[ers' discount)
Proceeds used for credit enhancement
Proceeds allocaced to reasonably required reserve or replacement fund
Note: Preliminary Numbers, Subjec[to Change.
0 00
110,850 00
0 00
0 00
P38
RESOLUTION OF THE BOARD OF SUPERVISORS
OF THE COUNTY OF PITTSYLVANIA, VIRGINIA
AUTHORIZING AND APPROVING THE
EXECUTION AND DELIVERY OF MASTER EQUIPMENT LEASE AGREEMENT
WHEREAS, the Board of Supervisors of the County of Pittsylvania, Virginia
(the "Board"), has determined that it is necessary and desirable to finance all or a portion of
emergency 911 communication equipment and facilities (the "Equipment") for the County of
Pittsylvania, Virginia (the "County");
WHEREAS, there has been presented to the Board a plan for the financing of the
Equipment which would not create debt of the County for purposes of the Virginia Constitution;
WHEREAS, the County has decided, pursuant to such financing plan, to enter
into, execute and deliver a Master Equipment Lease Agreement and a Schedule No. 1 thereunder
for the Equipment (collectively, the "Lease Purchase Agreement"), the payments under which
are subject to appropriation by the Board; and
WHEREAS, the provisions of the Lease Purchase Agreement will be in
conformity with the terms of a proposal (the "Commitment") from Bank of America Public
Capital Corp. (the "Bank");
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF
SUPERVISORS OF THE COUNTY OF PITTSYLVANIA, VIRGINIA:
1. Authorization of Lease Purchase Agreement and Use of Proceeds. The
County determines that it is advisable to accept the Commitment and execute and deliver the
Lease Purchase Agreement to the Bank. The execution and delivery of the Lease Purchase
Agreement are authorized and approved.
2. Details of Lease Purchase Agreement. 1'he Lease Purchase Agreement
shall be executed and delivered upon the terms and conditions set forth therein and in the
Commitment and shall be dated the date of its execution and delivery. The interest components
of the rental payments thereunder shall be determined based upon the rate of interest per annum
of 2.50%, and the principal components of the rental payments thereunder shall be determined
based upon a eleven year level principal amortization, with principal payments commencing on
March 15, 2014 and continuing on each March 15 thereafter through March 15, 2024. Interest
payments shall be made on each March 15 and September I5, commencing on September I5,
2012 and continuing through March 15, 2024. The amount of each principal and interest
component of the rental payments shall be as set forth in the Lease Purchase Agreement. The
proceeds of the Lease Purchase Agreement, which will be used to pay the purchase price of the
Equipment, capitalized interest and costs of issuance, shall not exceed $13,600,000. Principal
components of the rental payments under the Lease Purchase Agreement may be prepaid on or
after March 15, 2018 in whole only, without premium or penalty, on any March 15 or September
15, upon thirty (30) days' written notice given by the County to the Bank, together with any
interest due on the outstanding principal components so prepaid plus any accrued fees.
P39
3. Form of Lease Purchase Agreement. The Lease Purchase Agreement is
hereby approved, with such variations, insertions or deletions as may be approved by the
Chairman or the Vice Chairman of the Board or the County Administrator, any of whom may
act. All payments under the Lease Purchase Agreement are subject to appropriation by the
Board, and the Board is not, under any circumstances, obligated to make such appropriations.
4. Execution and Delivery of Lease Purchase Agreement. The Chairman and
the Vice Chairman of the Board and the County Administrator, any of whom may act, are each
authorized and directed to execute the Lease Purchase Agreement. The Clerk of the County is
authorized and directed to affix the seal of the County to the executed Lease Purchase
Agreement (if required) and to attest it and then to deliver the Lease Purchase Agreement to the
Bank.
5. Official Action. The Boazd hereby makes this declaration of official intent
under Treasury Regulations Section 1.150-2 and declares that the County intends to reimburse
itself with the proceeds of the Lease Purchase Agreement for expenditures made on, afrer or
within 60 days prior to the date hereof with respect to the Equipment, except that expenditures
made more than 60 days prior to the date hereof may be reimbursed as to certain de minimis or
preliminazy expenditures described in Treasury Regulations Section 1.150-2(f) and as to other
expenditures permitted under applicable Treasury Regulations.
6. Further Actions. The Chairman and the Vice Chairman of the Board and
the County Administrator, and such officers and agents of the County as may be designated by
any of them, aze authorized and directed to take such further actions as they deem necessary
regarding the execution and delivery of the Lease Purchase Agreement and the grant of a
security interest in the Equipment and in any currently existing emergency 911 communications
equipment and facilities owned by the County (the "Old Equipment"), including, without
limitation, the execution and delivery of (i) the exhibits to the Lease Purchase Agreement
including the Acquisition Fund and Account Control Agreement, (ii) an assignment of any
contracts related to the Equipment, (iii) deeds of easement with respect to properties upon which
the Equipment is to be located and the Old Equipment is located and (iv) closing documents and
certificates including a Form 8038-G, aNon-Arbitrage Certificate and a Tax Certificate. All
such actions previously taken by the Chairman, the Vice Chairman, the County Administrator or
such officers and agents are hereby approved, ratified and confirmed.
7. Selection of Bond Counsel. The County hereby consents to Troutman
Sanders LLP serving as Bond Counsel to the County in connection with the execution and
delivery of the Lease Purchase Agreement.
8. Essentiality of Euuioment. The Equipment is hereby declazed to be
essential to the efficient operation of the County, and the Board anticipates that the Equipment
will continue to be essential to the operation of the County during the term of the Lease Purchase
Agreement. The Board, while recognizing that it is not empowered to make any binding
commitment to make appropriations beyond the current fiscal year, hereby states its intent to
make annual appropriations in future fiscal years in amounts sufficient to make all payments
under the Lease Purchase Agreement and hereby recommends that future Boards do likewise
during the term of the Lease Purchase Agreement.
-2-
P40
9. Submission of Appropriation Request. The County Administrator is
hereby directed to submit for each fiscal year a request to the Board for an appropriation in an
amount equal to the payments becoming due on the Lease Purchase Agreement in the next fiscal
year. Nothing in this Resolution shall obligate the Board to make such appropriation or shall
constitute a pledge of the full faith and credit of the County beyond the constitutionally permitted
annual appropriations.
0. Fees and Costs. All expenses incurred by the Bank, the County and legal
counsel in connection with the execution and delivery of the Lease Purchase Agreement shall be
paid by the County, regardless of whether the Lease Purchase Agreement is executed and
delivered.
11. Limitation of Liability of Officials of the County. No covenant, condition,
agreement or obligation contained herein shall be deemed to be a covenant, condition, agreement
or obligation of an officer, employee or agent of the County in his or her individual capacity, and
no officer of the County executing the Lease Purchase Agreement shall be liable personally on
the Lease Purchase Agreement or be subject to any personal liability or accountability by reason
of the execution and delivery thereof. No officer, employee or agent of the County shall incur
any personal liability with respect to any other action taken by him or her pursuant to this
Resolution, provided he or she acts in good faith.
12. Contract with Bank. The provisions of this Resolution shall constitute a
contract between the County and the Bank for so long as the Lease Purchase Agreement is
outstanding. This Resolution may not be amended by the County in any manner without the
consent of the Bank, except to cure any defect, error, omission or ambiguity herein.
13. Effective Date. This Resolution shall take effect immediately.
-3-
P41
CERTIFICATE
The undersigned Clerk of the Board of Supervisors of the County of Pittsylvania, Virginia, does
hereby certify that the foregoing constitutes a true and correct extract from the minutes of a
meeting of the Board held on February 21, 2012, and of the whole thereof so far as applicable to the
matters referred to in such extract. I hereby further certify that such meeting was a regularly
scheduled meeting and that, during the consideration of the foregoing Resolution, a quorum was
present. The vote of the members of the Boazd upon the foregoing Resolution was as follows:
Member
Tim R. Barber
James Snead
Jerry A. Hagerman
Coy E. Harville
Mazshall A. Ecker
Jessie L. Bazksdale
Brenda H. Bowman
PresenUAbsent Vote
WITNESS MY HAND and the seal of the County of Pittsylvania, Virginia, this day
of February, 2012.
Clerk, Board of Supervisors of the County of
Pittsylvania, Virginia
223160.000025
2131495v2
-4-
P42
PITTSYLVANIA COUNTY, VIRGINIA
MASTER EQUIPMF,NT LEASE AGREEMENT
This Master Equipment Lease Agreement (the "Agreement ") dated as of February _,
2012, and entered into between BANC OF AMERICA PUBLIC CAPITAL CORP, a Kansas
corporation ("Lessor"), and PITTSYLVANIA COUNTY, VIRGINIA, a political subdivision of
the Commonwealth of Virginia ("Lessee ").
WITNESSETH:
WHEREAS, Lessee desires to lease and acquire from Lessor certain Equipment described
in each Schedule (as each such term is defined herein), subject to the terms and conditions of and
for the purposes set forth in each Lease; and in the event of a conflict with the terms hereof, [he
more specific terms of a Schedule shall prevail; and
WHEREAS, the relationship between the parties shall be a continuing one and items of
equipment may be added to the Equipment from time to time by execution of additional
Schedules by the parties hereto and as otherwise provided herein; provided, however that the
maximum aggregate amount of principal components of such Schedules shall not exceed
[$13,600,000] and that no Schedules hereunder may be executed after [February 21], 2013,
without further credit review and approval by Lessor, and
WHEREAS, Lessee is authorized under the constitution and laws of the Commonwealth of
Virginia to enter into this Agreement and the Schedules hereto for the purposes set forth herein;
and
Now, THEREFORE, for good and valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the premises hereinafter contained, the parties hereby
agree as follows:
ARTICLE I
Section 1.01. De tuitions. The following terms will have the meanings indicated below
unless the context clearly requires otherwise:
"Acquisition Amount" means the amount specified in each Lease and represented by
Lessee to be sufficient to acquire the Equipment listed in such Lease, which amount shall not be
less than $100,000 for each Lease.
"Acquisition Fund" means, with respect to any Lease, the fund established and held by
the Acquisition Fund Custodian pursuant to the related Acquisition Fund Agreement, if any.
"Acquisition Fund Agreement" means, with respect to any Lease, an Acquisition Fund
and Account Control Agreement, substantially in the form of Exhibit A attached hereto, in form
and substance acceptable to and executed by Lessee, Lessor and the Acquisition Fund Custodian,
pursuant to which an Acquisition Fund is established and administered.
t
P43
"Acquisition Fund Custodian" means the Acquisition Fund Custodian identified in any
Acquisition Fund Agreement, and its successors and assigns.
"Acquisition Period" means, with respect to each Lease, that period stated in the
Schedule to such Lease during which the Lease Proceeds attributable to such Lease may be
expended on Equipment Costs.
"Agreement" means this Master Equipment Lease Agreement, including the exhibits
hereto, together with any amendments and modifications to the Agreement pursuant to
Section 13.05.
"Code" means the Internal Revenue Code of 1986, as amended. Each reference to a
Section of the Code herein shall be deemed to include the United States Treasury Regulations
proposed or in effect thereunder.
"Commencement Date" means, for each Lease, the date when Lessee's obligation to pay
rent commences under such Lease, which date shall be the earlier of (i) the date on which the
Equipment listed in such Lease is accepted by Lessee in the manner described in Section 5.01,
and (ii) the date on which sufficient moneys to purchase the Equipment listed in such Lease are
deposited for that purpose with an Acquisition Fund Custodian.
"Contract Rate" means the rate identified as such in the applicable Schedule.
"Equipment" means the property listed in each of the Leases and all replacements,
repairs, restorations, modifications and improvements thereof or thereto made pursuant to
Section 8.01 or Article V. Whenever reference is made in this Agreement to Equipment listed in
a Lease, such reference shall be deemed to include all such replacements, repairs, restorations,
modifications and improvements of or to such Equipment.
"Equipment Costs" means the total cost of the Equipment listed in each Lease, including
soft costs such as freight, installation and taxes paid up front by Lessor and all capitalizable
consulting and training fees approved by Lessor, legal fees, financing costs, and other costs
necessary to vest full, cleaz legal title to the Equipment in Lessee, subject to the security interest
granted to and retained by Lessor as set forth in each Lease, and otherwise incurred in
connection with the financing provided by the lease-purchase of the Equipment as provided in
each Lease; provided that (i) any such soft costs on a cumulative basis shall not exceed 20% of
the Maximum Equipment Cost if and as approved by Lessor and (ii) in no event shall
capitalizable delivery charges, installation chazges, taxes and similar capitalizable "soft costs"
relating to such Equipment be included without Lessor's prior consent.
"Event of Default" means an Event of Default described in Section 12.01.
"Lease" means an individual Schedule, together with the terms of this Agreement which
are incorporated by reference into such Schedule. Each Schedule shall constitute a separate and
independent Lease.
2
P44
"Lease Proceeds" means, with respect to each Lease, the total amount of money to be
paid by Lessor to the Acquisition Fund Custodian for deposit and application in accordance with
such Lease and the Acquisition Fund Agreement.
"Lessee "means the entity referred to as Lessee in the first paragraph of this Agreement.
"Lessor" means (a) the entity referred to as Lessor in the first paragraph of this Agree-
ment or (b) any assignee or transferee of any right, title or interest of Lessor in and to the
Equipment under a Lease or any Lease (including Rental Payments thereunder) pursuant to
Section 11.01, but does not include any entity solely by reason of that entity retaining or
assuming any obligation of Lessor to perform under a Lease.
"Material Adverse Change" means (a)prior to the Utilization Period Expiration, a
downgrade in Lessee's external debt rating of two or more subgrades by either Moody's
Investors Service, Inc, or Standard & Poor's Ratings Group or any equivalent successor credit
rating agency, or any downgrade by either such agency that would cause Lessee's credit rating to
be below investment grade, and (b) thereafter, any change in Lessee's creditworthiness that
could have, in the opinion of Lessor, a material adverse etfect on (i) the financial condition or
operations of Lessee, or (ii) Lessee's ability to perform its obligations under this Agreement or
any Lease.
"Maximum Equipment Cost" means the cumulative amount that may be financed under
this Agreement and the Schedules hereunder, not to exceed j$13,600,000.]
"Purchase Price" means, with respect to the Equipment listed on a Lease, the amount
that Lessee may pay to Lessor to prepay all Rental Payments and to take unencumbered title to
such Equipment as provided in such Lease.
"Rental Payments "means the basic rental payments payable by Lessee under each Lease
pursuant to Section 4.01, in each case consisting of a principal component and an interest
component.
"Schedule" means each separately numbered Schedule of Property substantially in the
form of Exhibit B-1 hereto together with a Rental Payment Schedule attached thereto
substantially in the form of Exhibit B-2 hereto; provided, however, that no Schedules hereunder
shall be executed [February 21, 2013], without further credit review and approval by Lessor.
"State" means the Commonwealth of Virginia.
"Taxable Rate "means the rate identified as such in the applicable Schedule.
"Term "means (i) far purposes of each Lease, the period from the Commencement Date
until the final Rental Payment thereunder, as indicated on the applicable Schedule and (ii) for
purposes of this Agreement, the period from the date hereof until the date this Agreement is
terminated.
3
P45
"Utilization Period Expiration" means the date, with respect to each Lease not funded
under an Acquisition Fund Agreement, by which Lessee must deliver an Acceptance Certificate
for the Equipment under such Lease as indicated in Section 3.04(b).
"Vendor" means the manufacturer or supplier of the Equipment or any other person as
well as the agents or dealers of the manufacturer or supplier with whom Lessor arranged
Lessee's acquisition and financing of the Equipment pursuant to the applicable Lease.
ARTICLE II
Section 2.01. Representations and Covenants of Lessee. Lessee represents, covenants
and warrants for the benefit of Lessor on the date hereof and as of the Commencement Date of
each Lease as follows:
(a) Lessee is a political subdivision of the State within the meaning of Section 103(c)
of the Code, duly organized and existing under the constitution and laws of the State, with full
power and authority to enter into this Agreement and each Lease and the transactions
contemplated hereby and to perform all of its obligations hereunder and under each Lease.
(b) Lessee has duly authorized the execution and delivery of this Agreement and each
Lease by proper action of its governing body at a meeting duly called, regularly convened and
attended throughout by the requisite quorum of the members thereof, or by other appropriate
official approval, and all requirements have been met and procedures have occurred in order to
ensure the validity and enforceability of this Agreement and each Lease.
(c) No event or condition that constitutes, or with the giving of notice or the lapse of
time or both would constitute, an Event of Default exists at the date hereof.
(d) Lessee will do or cause to be done all things necessary to preserve and keep in full
force and effect its existence as a body corporate and politic.
(e) Lessee has complied with such public bidding requirements as may be applicable
to this Agreement and each Lease and the acquisition by Lessee of the Equipment as provided in
each Lease.
(f) During the Term of any Lease, the Equipment will be used by Lessee only for the
purpose of performing essential govemmental or proprietary functions of Lessee consistent with
the permissible scope of Lessee's authority. Lessee does not intend to sell or otherwise dispose
of the Equipment or any interest therein prior to the last Rental Payment scheduled to be paid
under each Lease.
(g) Lessee will not request payment for Equipment or subject Equipment to any
Lease the Term of which is longer than the useful life of such Equipment.
(h) Lessee has kept, and throughout the Term of any Lease shall keep, its books and
records in accordance with generally accepted accounting principles and practices consistently
applied, and shall deliver to Lessor (i) annual audited financial statements (including (1) a
balance sheet, (2) statement of revenues, expenses and changes in fund balances for budget and
4
P46
actual, (3) statement of cash flows and notes, and (4) schedules and attachments to the financial
statements) within 210 days of its fiscal year end, (ii) such other financial statements and
information as Lessor may reasonably request, and (iii) its annual budget for the following fiscal
year when approved, but not later than 30 days prior to its current fiscal year end and as
requested by Lessor. The financia] statements described in this subsection (h) shall be
accompanied by an unqualified opinion of Lessee's auditor. Credit information relating to
Lessee may be disseminated among Lessor and any of its affiliates and any of their respective
successors and assigns.
(i) Lessee has an immediate need for the Equipment to be listed on each Schedule
and expects to make immediate use of the Equipment to be listed on each Schedule. Lessee's
need for the Equipment is not temporary and Lessee does not expect the need for any item of the
Equipment to diminish during the Term to such item.
(j) The payment of the Rental Payments or any portion thereof is not (under the
terms of any Lease or any underlying arrangement) directly or indirectly (x) secured by any
interest in property used or to be used in any activity carried on by any person other than a state
or local governmental unit or payments in respect of such property; or (y) on a present value
basis, derived from payments (whether or not to Lessee) in respect of property, or borrowed
money, used or to be used in any activity carried on by any person other than a state or local
governmental unit. The Equipment will not be used, directly or indirectly, in any activity carried
on by any person other than a state or local governmental unit. No portion of the Equipment
Costs for the Equipment will be used, directly or indirectly, to make or finance loans to any
person other than Lessee. Lessee has not entered into, and will not enter into, any management
or other service contract with respect to the use and operation of the Equipment without an
opinion of bond counsel that such management or service contract will not cause the interest
component of Rental Payments (under the respective Lease) to be or to become ineligible for the
exclusion from gross income of the owner or owners thereof for federal income tax purposes.
(k) There is no pending litigation, tax claim, proceeding or dispute that may adversely
affect Lessee's financial condition or impairs its ability to perform its obligations hereunder.
Lessee will, at its expense, maintain its legal existence in good standing and do any further act
and execute, acknowledge, deliver, file, register and record any further documents Lessor may
reasonably request in order to protect Lessor's security interest in the Equipment and Lessor's
rights and benefits under this Lease.
ARTICLE III
Section 3.01. Lease o~~ment. Subject to the terms of this Master Lease, Lessor
agrees to provide the funds specified in each Lease to be provided by it to acquire the
Equipment, up to an aggregate amount equal to the Maximum Equipment Cost. Upon the
execution of each Lease, Lessor demises, leases, transfers and lets to Lessee, and Lessee
acquires, rents and leases from Lessor, the Equipment as set forth in such Lease and in
accordance with the terms thereof.
Section 3.02. Appropriation Durin~m. Lessee intends, subject to Section 3.03, to
pay the Rental Payments due under each Lease. Lessee affirms that sufficient funds are available
5
P47
for the current fiscal year, and Lessee reasonably believes that an amount sufficient to make all
Rental Payments during the entire Term of each Lease can be obtained from legally available
funds of Lessee. Lessee further intends to do all things lawfully within its power to obtain and
maintain funds sufficient and available to discharge its obligation to make Rental Payments due
hereunder, including making provision for such payments to the extent necessary in each budget
or appropriation request submitted and adopted in accordance with applicable provisions of law,
to have such portion of the budget or appropriation request approved and to exhaust all available
reviews and appeals in the event such portion of the budget or appropriation request is not
approved.
Section 3.03. Nonap~ropriation. Notwithstanding any provision in this Agreement to
the contrary, all funds for payments by Lessee under this Agreement, including all Rental
Payments under each Lease, aze subject to the availability of an annual appropriation for this
purpose by the Board of Supervisors of Lessee. While recognizing that it is not empowered to
make any binding commitment beyond the current fiscal year of Lessee, it is the current intention
of Lessee to make sufficient annual appropriations during the Term of this Agreement to pay all
Rental Payments and other amounts required to be paid by Lessee under this Agreement and
each Lease. Lessee directs the County Administrator (or other officer charged with the
responsibility of preparing Lessee's annual budget) to include in the budget for each fiscal year
of Lessee during the Term of this Agreement a request that Lessee appropriate in the fiscal year
the amount of Rental Payments and other payments payable by Lessee under this Agreement and
each Lease during such fiscal year. Throughout the Term of this Agreement, the County
Administrator (or other officer charged with the responsibility of prepazing Lessee's annual
budget) shall deliver to Lessor within 10 days after the adoption of the annual budget for each
fiscal year, but not later than July 1 of each fiscal year, a certificate stating whether an amount
equal to, or credited to the payment of, the Rental Payments and other amounts required to be
paid by Lessee during such fiscal yeaz have been approved by the Board of Supervisors and
included in the adopted annual budget. If at any time during any fiscal year of Lessee, the
amount appropriated in the annual budget of Lessee for the fiscal year is insufficient to pay when
due the Rental Payments and other amounts due under this Agreement and each Lease, Lessee
directs the County Administrator (or other officer charged with responsibility for preparing
Lessee's annual budget) to submit to the Board of Supervisors of Lessee, at its next scheduled
meeting, or as promptly as practicable, but in any event within 45 days, a request for a
supplemental appropriation sufficient to cover the deficit. Failure by Lessee to make any
payments hereunder as a result of non-appropriation shall not be deemed to be an Event of
Default, but such failure shall result in the termination of this Agreement and all Leases at the
end of the then current fiscal yeaz for which sufficient appropriations have been made. Upon
such termination, Lessee agrees to peaceably deliver the Equipment under all outstanding Leases
to Lessor at the location(s) to be specified by Lessor.
Section 3.04. Conditions to Lessor's Performance.
(a) As a prerequisite to the performance by Lessor of any of its obligations pursuant
to this Agreement, Lessee shall deliver to Lessor the following:
6
P48
(i) A certificate executed by the County Administrator, Director of Finance or
other comparable officer of Lessee, in substantially the form attached hereto as Exhibit C,
completed to the satisfaction of Lessor;
(ii) A certified copy of a resolution, ordinance or other official action of
Lessee's governing body authorizing the execution and delivery of this Lease and
performance by Lessee of its obligations hereunder;
(iii) An opinion of counsel to Lessee in substantially the form attached hereto
as Exhibit D-1 and otherwise satisfactory to Lessor;
(iv) An opinion of bond counsel in substantially the form attached hereto as
Exhibit D-2 and otherwise satisfactory to Lessor;
(v) A copy of a fully completed and executed Form 8038-G; and
(vi) Evidence of insurance as required by Section 7.02 hereof;
(b) As a prerequisite to the performance by Lessor of any of its obligations pursuant
to any Lease, Lessee shall deliver to Lessor the following:
(i) A fully completed Schedule, executed by Lessee;
(ii) An Acquisition Fund Agreement, executed by Lessee and the Acquisition
Fund Custodian, unless Lessor is requested to pay 100% of the Acquisition Amount
directly to the Vendor upon execution of the Lease, in which case the Lessor shall deliver
the Acceptance Certificate set forth in Exhibit E;
(iii) All documents, including financing statements, affidavits, notices and
similar instruments, in form satisfactory to Lessor, which Lessor deems necessary or
appropriate at that time pursuant to Section 6.02, including, but not limited to,
[SUBJECT TO FURTHER DISCUSSION - (A) the Easement Agreement, (B) the
Subordination Agreement (Parcel 7) and (C) the Subordination Agreement (Parcel 8)];
(iv) A copy of a fully completed and executed Internal Revenue Service Form
8038-G;
(v) Evidence of co-obligee status on performance bonds and evidence of
collateral assignment of vendor contracts;
(vi) If any Equipment units are motor vehicles, properly completed certificates
of title for such vehicles; and
(vii) Such other items, if any, as are set forth in such Lease or are reasonably
required by Lessor.
(c) In addition, the performance by Lessor of any of its obligations pursuant to any
Lease shall be subject to: (i) no Material Adverse Change in the financial condition of Lessee
7
P49
since the date of this Lease, (ii) no Event of Default having occurred, and (iii) if no Acquisition
Fund has been established, the Equipment must be accepted by Lessee no later than the date
listed as the Utilization Period Expiration in the applicable Schedule.
(d) Subject to satisfaction of the foregoing and the provisions of subsection (e) below,
Lessor will pay the Acquisition Amount for Equipment described in a Schedule to the Vendor or,
if authorized by Lessee's governing body, will reimburse Lessee for the prior payment of any
such Acquisition Amounts by Lessee to the Vendor, upon receipt of the documents described in
Sections 5.01(a) and (b); or if an Acquisition Fund has been established pursuant to an
Acquisition Fund Agreement, Lessor will deposit the Acquisition Amount for Equipment
described in the Schedule with the Acquisition Fund Custodian.
(e) This Agreement is not a commitment by Lessor to enter into any Lease not
currently in existence, and nothing in this Agreement shall be construed to impose any obligation
upon Lessor to enter into any proposed Lease, it being understood that whether Lessor enters into
any proposed Lease shall be a decision solely within Lessor's discretion. The Term of each
Lease shall not exceed the useful life (as determined by Lessor) of the Equipment being financed
under such Lease.
(f) Lessee will cooperate with Lessor in Lessor's review of any proposed Lease.
Without limiting the foregoing, Lessee will provide Lessor with any documentation or
information Lessor may request in connection with Lessor's review of any proposed Lease.
Such documentation may include, without limitation, documentation concerning the Equipment
and its contemplated use and location and documentation or information concerning the financial
status of Lessee and other matters related to Lessee.
ARTICLE IV
Section 4.01. Rental Pavments. Subject to Section 3.03, Lessee shall promptly pay
Rental Payments, in lawful money of the United States of America, to Lessor on each March 15
and September 15 (commencing on the date set Forth in each Lease) and in such amounts as
provided in each Lease. Lessee shall pay Lessor a late charge on any Rental Payment not paid
on the date such payment is due at a rate equal to the Contract Rate plus 5% per annum or the
maximum amount permitted by law, whichever is less, from such date. Lessee shall not permit
the federal government to guarantee any Rental Payments under any Lease. Rental Payments
consist of principal and interest payments as more fully detailed on each Schedule, the interest on
which begins to accrue as of the Commencement Date for each such Schedule.
Section 4.02. Interest and Principal Components. A portion of each Renta] Payment is
paid as, and represents payment of, interest, and the Balance of each Rental Payment is paid as,
and represents payment of, principal. Each Lease shall set forth the principal and interest
components of each Rental Payment payable thereunder during the Term.
Section 4.03. Rental Payments to Constitute a Current Expense of Lessee. Lessor and
Lessee understand and intend that the obligation of Lessee to pay Rental Payments under each
Lease shall constitute a current expense of Lessee payable solely from its general fund or other
funds that aze legally available for that purpose and shall not in any way be construed to be a
8
P50
debt of Lessee in contravention of any applicable constitutional or statutory ]imitation or
requirement concerning the creation of indebtedness by Lessee, nor shall anything contained
herein or in a Lease constitute a pledge of the general tax revenues, funds or moneys of Lessee.
Section 4.04. Renta[ Payments to be Unconditional. Except as provided in Section 3.03,
the obligations of Lessee to make Rental Payments and to perform and observe the other
covenants and agreements contained in each Lease shall be absolute and unconditional in all
events without abatement, diminution, deduction, set-off or defense, for any reason, including
without limitation any Failure of the Equipment, after it has been accepted by Lessee, any
defects, malfunctions, breakdowns or infirmities in the Equipment or any accident,
condemnation or unforeseen circumstances.
Section 4.05. Tax Covenants.
(a) Lessee agrees that it will not take any action that would cause the interest
component of Rental Payments to be or to become ineligible for the exclusion from gross income
of the owner or owners thereof for federal income tax purposes, nor will it omit to take or cause
to be taken, in timely manner, any action, which omission would cause the interest component of
Rental Payments to be or to become ineligible for the exclusion from gross income of the owner
or owners thereof for federal income tax purposes.
(b) In the event that Lessee does not spend the moneys in the Acquisition Fund within
six (6) months of the date the deposit is made pursuant to Section 3.04(c), Lessee will, if required
by section 1480 of the Code to pay rebate: (i) establish a Rebate Account and deposit the
Rebate Amount (as defined in Section 1.148-3(b) of the Federal Income Tax Regulations) not
less frequently than once per year after the applicable Commencement Date; and (ii) rebate to the
United States, not less frequently than once every five (5) years after the applicable
Commencement Date, an amount equal to at least 90% of the Rebate Amount and within 60 days
after payment of all Rental Payments or the Purchase Price as provided in Section 10.01 (a)
hereof, 100% of the Rebate Amount, as required by the Code and any regulations promulgated
thereunder. Lessee shall determine the Rebate Amount, if any, at least every year and upon
payment of all Rental Payments or the Purchase Price and shall maintain such determination,
together with any supporting documentation required to calculate the Rebate Amount, until six
(6) years after the date of the final payment of the Rental Payments or the Purchase Price.
Section 4.06. Event o~Taxability. Upon the occurrence of an Event of Taxability, the
interest component shall be at a Taxable Rate retroactive to the date as of which the interest
component is determined by the Internal Revenue Service to be includible in the gross income of
the owner or owners thereof for federal income tax purposes, and Lessee will pay such additional
amount as will result in the owner receiving the interest component at the Taxable Rate
identified in the related Lease.
For purposes of this Section, "Event of Taxability" means a determination that the
interest component is includible for federal income tax purposes in the gross income of the
owner thereof due to Lessee's action or failure to take any action.
9
P51
Section 4.07. Mandatory Pre~yment. If the Lease Proceeds are deposited into an
Acquisition Fund, any funds remaining in the Acquisition Fund on or afrer the Acquisition
Period and not applied to Equipment Costs, shall be applied by Lessor, in its sole discretion
(based upon the amount remaining in such Fund), on the next Rental Payment date to either: (i)
all or a portion of the next Rental Payment and if such amount is in excess of the next Rental
Payment then any remaining balance shall be applied to all or a portion of the next succeeding
Rental Payments until fully applied; or (ii) as prepayment to the remaining principal balance
owing under the Schedule in the inverse order of maturity; provided, however if the amounts
remaining in such Fund consists solely of investment earnings, such excess amounts may be
refunded directly to Lessee.
ARTICLE V
Section 5.01. Delivery Installation and Acceptance of Equipment.
(a) Lessee shall order the Equipment, cause the Equipment to be delivered and
installed at the location specified in the Leases and pay any and all delivery and installation costs
and other Equipment Costs in connection therewith. When the Equipment listed in any Lease
has been delivered and installed, Lessee shall promptly accept such Equipment and evidence said
acceptance by executing and delivering to Lessor an Acceptance Certificate in the form attached
hereto as Exhibit E.
(b) Lessee shall deliver to Lessor original invoices and bills of sale (if title to such
Equipment has passed to Lessee) relating to each item of Equipment accepted by Lessee. With
respect to Equipment not purchased through an Acquisition Fund, Lessor shall, upon receipt of
an Acceptance Certificate from Lessee, prepare a Schedule of Property and Rental Payment
Schedule in the forms attached hereto as Exhibits B-1 and B-2. Lessee shall execute and deliver
such Schedules to Lessor within 5 business days of receipt.
Section 5.02. Quiet En~ment of Eguipment. So long as Lessee is not in default under
the related Lease, neither Lessor nor any entity claiming by, through or under Lessor, shall
interfere with Lessee's quiet use and enjoyment of the Equipment during the Term of the related
Lease.
Section 5.03. Location; Inspection. Once installed, no item of the Equipment will be
relocated from the base location specified for it in the Lease on which such item is listed without
Lessor's consent, which consent shall not be unreasonably withheld. Notwithstanding the
foregoing, so long as (a) no Event of Default has occurred hereunder and (b) Lessee has not
failed to appropriate Rental Payments as described in Section 3.03 hereof, Lessee may relocate
such Equipment to another location within the geographical boundaries of Lessee without
requiring Lessor's consent. Lessor shall have the right at all reasonable times during regular
business hours to enter into and upon the property of Lessee for the purpose of inspecting the
Equipment.
Section 5.04. Use and Maintenance of the E ui ment. Lessee will not install, use,
operate, or maintain the Equipment improperly, carelessly, in violation of any applicable law or
in a manner contrary to that contemplated by the related Lease. Lessee shall provide all permits
i0
P52
and licenses, if any, necessary for the installation and operation of the Equipment. In addition,
Lessee agrees to comply in alt respects with all applicable laws, regulations and rulings of any
legislative, executive, administrative, or judicial body; provided that Lessee may contest in good
faith the validity or application of any such law, regulation or ruling in any reasonable manner
that does not, in the opinion of Lessor, adversely affect the interest (including the reversionary
interest) of Lessor in and to the Equipment or its interest or rights under the Lease.
Lessee agrees that it will maintain, preserve, and keep the Equipment in good repair and
working order, in a condition comparable to that recommended by the manufacturer. Lessor
shall have no responsibility to maintain, repair or make improvements or additions to the
Equipment. In all cases, Lessee agrees to pay any costs necessary for the manufacturer to re-
certify the Equipment as eligible for manufacturer's maintenance upon the return of the
Equipment to Lessor as provided for herein.
Lessee shall not alter any item of Equipment or install any accessory, equipment or
device on an item of Equipment if that would impair any applicable warranty, the originally
intended function or the value of that Equipment. All repairs, parts, accessories, equipment and
devices furnished, affixed to or installed on any Equipment, excluding temporary replacements,
shall thereupon become subject to the security interest of Lessor.
ARTICLE VI
Section 6.01. Title to the Equipment. During each Term, and so long as Lessee is not in
default under Article XII hereof, all right, title and interest in and to each item of the Equipment
shall be vested in Lessee immediately upon its acceptance of each item of Equipment, subject to
Lessor's security interest and right to take possession, as described below, and to the terms and
conditions of the applicable Lease. Lessee shall at all times protect and defend, at its own cost
and expense, its title in and to the Equipment From and against all claims, liens and legal
processes of its creditors, and keep all Equipment free and clear of all such claims, liens and
processes. Upon the occurrence of an Event of Default or upon termination of a Lease pursuant
to Section 3.03 hereof, full and unencumbered legal title to the Equipment shall pass to Lessor,
and Lessee shall have no further interest therein. In addition, upon the occurrence of such an
Event of Default or such termination, Lessee shall execute and deliver to Lessor such documents
as Lessor may request to evidence the passage of such legal title to Lessor and the termination of
Lessee's interest therein, and upon request by Lessor shall deliver possession of the Equipment
to Lessor in accordance with Section 12.02. Upon purchase of the Equipment under a Lease by
Lessee pursuant to Section 10.01, Lessor's security interest or other interest in the Equipment
shall terminate, and Lessor shall execute and deliver to Lessee such documents as Lessee may
request to evidence the termination of Lessor's security interest in the Equipment subject to the
related Lease.
Section 6.02. Security Interest. To secure the payment of all of Lessee's obligations
under each Lease, upon the execution of such Lease, Lessee grants to Lessor a security interest
constituting a first lien on (a) the Equipment applicable to such Lease, (b) moneys and invest-
ments held from time to time in the Acquisition Fund and (c) any and all proceeds of any of the
foregoing. Lessee agrees to execute and authorizes Lessor to file such notices of assignment,
chattel mortgages, financing statements and other documents, in form satisfactory to Lessor,
P53
which Lessor deems necessary or appropriate to establish and maintain Lessor's security interest
in the Equipment, the Acquisition Fund and the proceeds thereof.
Section 6.03. Personal Property. The Equipment is and will remain personal property
and will not be deemed to be affixed to or a part of the real estate on which it may be situated,
notwithstanding that the Equipment or any part thereof may be or hereafter become in any
manner physically affixed or attached to real estate or any building thereon. Upon the request of
Lessor, Lessee will, at Lessee's expense, furnish a waiver of any interest in the Equipment from
any party having an interest in any such real estate or building.
ARTICLE VII
Section 7.01. Liens. Taxes Other Governmental Charges and Utility Char es. Lessee
shall keep the Equipment free of all levies, liens, and encumbrances except those created by each
Lease. The parties to this Agreement contemplate that the Equipment will be used fora govern-
mental or proprietazy purpose of Lessee and that the Equipment will therefore be exempt from
all property taxes. If the use, possession or acquisition of any Equipment is nevertheless
determined to be subject to taxation, Lessee shall pay when due all taxes and governmental
charges lawfully assessed or levied against or with respect to such Equipment. Lessee shall pay
all utility and other charges incurred in the use and maintenance of the Equipment. Lessee shall
pay such taxes or charges as the same may become due; provided that, with respect to any such
taxes or chazges that may lawfully be paid in installments over a period of yeazs, Lessee shall be
obligated to pay only such installments as accrue during each Term.
Section 7.02. Insurance. Lessee shall during each 'T'erm maintain or cause to be
maintained (a) casualty insurance naming Lessor and its assigns as loss payee and insuring the
Equipment against loss or damage by fire and all other risks covered by the standard extended
coverage endorsement then in use in the State, and any other risks reasonably required by Lessor,
in an amount at least equal to the then applicable Purchase Price of the Equipment; (b) liability
insurance naming Lessor as additional insured that protects Lessor from liability in all events in
form and amount satisfactory to Lessor; and (c) worker's compensation coverage as required by
the laws of the State; provided that, with Lessor's prior written consent, Lessee may self-insure
against the risks described in clause (a). Lessee shall furnish to Lessor evidence of such
insurance or self-insurance coverage throughout each Tenn. Lessee shall not cancel or modify
such insurance or self-insurance coverage in any way that would affect the interests of Lessor
without first giving written notice thereof to Lessor at least 30 days in advance of such
cancellation or modification.
Section 7.03. Risk of Loss. Whether or not covered by insurance or self-insurance,
Lessee hereby assumes all risk of loss of, or damage to and liability related to injury or damage
to any persons or property arising from the Equipment from any cause whatsoever, and no such
loss of or damage to or liability arising from the Equipment shall relieve Lessee of the obligation
to make the Rental Payments or to perform any other obligation under this Lease. Whether or
not covered by insurance or self-insurance, Lessee hereby agrees to reimburse Lessor (to the
fullest extent permitted by applicable law, but only from legally available funds) for any and all
liabilities, obligations, losses, costs, claims, taxes or damages suffered or incurred by Lessor,
regardless of the cause thereof and all expenses incurred in connection therewith (including,
12
P54
without limitation, counsel fees and expenses, and penalties connected therewith imposed on
interest received) arising out of or as a result of (a) entering into of this Agreement or any of the
transactions contemplated hereby, (b) the ordering, acquisition, ownership use, operation,
condition, purchase, delivery, acceptance, rejection, storage or return of any item the Equipment,
(c) any accident in connection with the operation, use, condition, possession, storage or return of
any item of the Equipment resulting in damage to property or injury to or death to any person,
and/or (d) the breach of any covenant of Lessee in connection with a Lease or any material
misrepresentation provided by Lessee in connection with a Lease. The provisions of this
paragraph shall continue in full force and effect notwithstanding the full payment of all
obligations under all Leases or the termination of the Term under any Lease for any reason.
Section 7.04. Advances. In the event Lessee shall fail to keep the Equipment in good
repair and working order, Lessor may, but shall be under no obligation to, maintain and repair
the Equipment and pay the cost thereof. All amounts so advanced by Lessor shall constitute
additional rent for the Term and Lessee covenants and agrees to pay such amounts so advanced
by Lessor with interest thereon from the due date until paid at a rate equal to the Contract Rate
plus 5% per annum or the maximum amount permitted by law, whichever is less.
ARTICLE VIII
Section 8.01. Damage Destruction and Condemnation. Unless Lessee shall have
exercised its option to prepay all Rental Payments and to take unencumbered title to the
Equipment by making payment of the Purchase Price as provided in the related Lease, if, prior to
the termination of the applicable Term, (a) the Equipment or any portion thereof is destroyed, in
whole or in part, or is damaged by fire or other casualty or (b) title to, or the temporary use of,
the Equipment or any part thereof shall be taken under the exercise or threat of the power of
eminent domain by any governmental body or by any person, firm or corporation acting pursuant
to governmental authority, Lessee and Lessor will cause the Net Proceeds of any insurance claim
or condemnation award or sale under threat of condemnation to be applied to the prompt
replacement, repair, restoration, modification or improvement of the Equipment. Any balance of
the Net Proceeds remaining afrer such work has been completed shall be paid to Lessee.
If Lessee elects to replace any item of the Equipment (the "Replaced Equipment")
pursuant to this Section, the replacement equipment (the "Replacement Equipment") shall be of
similar type, utility and condition to the Replaced Equipment and shall be of equal or greater
value than the Replaced Equipment. Lessor shall receive a first priority security interest in any
such Replacement Equipment. Lessee shall represent, warrant and covenant to Lessor that each
item of Replacement Equipment is free and clear of all claims, liens, security interests and
encumbrances, excepting only those liens created by or through Lessor, and shall provide to
Lessor any and all documents as Lessor may reasonably request in connection with the
replacement, including, but not limited to, documentation in form and substance satisfactory to
Lessor evidencing Lessor's security interest in the Replacement Equipment. Lessor and Lessee
hereby acknowledge and agree that any Replacement Equipment acquired pursuant to this
paragraph shall constitute "Equipment" for purposes of this Agreement and the related Lease.
Lessee shall complete the documentation of Replacement Equipment on or before the next
Rental Payment date afrer the occurrence of a casualty event, or be required to exercise the
Purchase Option with respect to the damaged equipment.
13
P55
For purposes of this Article, the term "Net Proceeds" shall mean the amount remaining
from the gross proceeds of any insurance claim or condemnation award or sale under threat of
condemnation after deducting all expenses, including attorneys' fees, incurred in the collection
thereof.
Section 8.02. Insu(Ociencv of Net Proceeds. If the Net Proceeds are insufficient to pay in
full the cost of any repair, restoration, modification or improvement referred to in Section 8.01,
Lessee shall either (a) complete such replacement, repair, restoration, modification or
improvement and pay any costs thereof in excess of the amount of the Net Proceeds, or (b) pay
or cause to be paid to Lessor the amount of the then applicable Purchase Price for the Equipment,
and, upon such payment, the applicable Term shall terminate and Lessor's security interest in the
Equipment shall terminate as provided in Section 6.01 hereof. The amount of the Net Proceeds,
if any, remaining after completing such repair, restoration, modification or improvement or after
purchasing such Equipment and such other Equipment shall be retained by Lessee. If Lessee
shall make any payments pursuant to this Section, Lessee shall not be entitled to any
reimbursement therefor from Lessor nor shall Lessee be entitled to any diminution of the
amounts payable under Article IV.
ARTICLE IX
Section 9.01. Disclaimer of Warranties. Lessor makes no warranty or representation,
either express or implied, as to the value, design, condition, merchantability or fitness for
particulaz purpose or fitness for use of the Equipment, or any other warranty or representation,
express or implied, with respect thereto and, as to Lessor, Lessee's acquisition of the Equipment
shall be on an "as is" basis. In no event shall Lessor be liable for any incidental, indirect, special
or consequential damage in connection with or azising out of this Agreement, any Lease, the
Equipment or the existence, furnishing, functioning or Lessee's use of any item, product or
service provided for in this Agreement or any Lease.
Section 9.02. Vendor's Warranties. Lessor hereby irrevocably appoints Lessee its agent
and attorney-in-fact during each Term, so long as Lessee shall not be in default under the related
Lease, to assert from time to time whatever claims and rights (including without limitation
warranties) relating to the Equipment that Lessor may have against Vendor. Lessee's sole
remedy for the breach of such warranty, indemnification or representation shall be against
Vendor of the Equipment, and not against Lessor. Any such matter shall not have any effect
whatsoever on the rights and obligations of Lessor with respect to any Lease, including the right
to receive full and timely payments under a Lease. Lessee expressly acknowledges that Lessor
makes, and has made, no representations or warranties whatsoever as to the existence or the
availability of such warranties relating to the Equipment.
ARTICLE X
Section 10.01. Purchase Option. Lessee shall have the option to take unencumbered title
to all of the Equipment listed in a Lease, free and cleaz of any interest of Lessor therein, at the
following times and upon the following terms:
14
P66
(a) On any Rental Payment date occurring after the [sixth] anniversary date of such
Lease, and upon not less than thirty (30) days' prior written notice to Lessor, Lessee may
exercise its purchase option upon payment in full to Lessor of the Rental Payments then due
under such Lease plus the then applicable Purchase Price; or
(b) In the event of substantial damage to or destruction or condemnation of
substantially all of the Equipment listed in a Lease, on the day specified in Lessee's notice to
Lessor of its exercise of the purchase option (which shall be the earlier of the next Rental
Payment date or 60 days after the casualty event) upon payment in full to Lessor of the Rental
Payments then due under such Lease plus the then applicable Purchase Price; or
(c) Upon the expiration of the Term of such Lease, upon payment in full of all Rental
Payments then due and all other amounts then owing under the Lease, and the payment of $1.00
to Lessor.
After payment of the amount described above, Lessee will own the related Equipment,
and Lessor's security interests in and to such Equipment will be terminated.
ARTICLE XI
Section 11.01. Assignment b~Lessor.
(a) Lessor's right, title and interest in and to Rental Payments and any other amounts
payable by Lessee under any and all of the Leases, its security interest in the Equipment subject
to each such Lease, and all proceeds therefrom may be assigned and reassigned in whole or in
part to one or more assignees or subassignees by Lessor, without the necessity of obtaining the
consent of Lessee; provided, that any such assignment, transfer or conveyance to a trustee for the
benefit of owners of certificates of participation shall be made in a manner that conforms to any
applicable State law. Nothing in this Section 11.01 shall be construed, however, to prevent
Lessor from executing any such assignment, transfer or conveyance that does not involve
funding through the use of certificates of participation within the meaning of applicable State
law, including any such assignment, transfer or conveyance as part of a multiple asset pool to a
partnership or trust; provided such certificates are sold only on a private placement basis (and not
pursuant to any "public offering") to a purchaser(s) who represents that (i) such purchaser has
sufficient knowledge and experience in financial and business matters to be able to evaluate the
risks and merits of the investment, (ii) such purchaser understands neither the Lease nor
certificates will be registered under the Securities Act of 1933, (iii) such purchaser is either an
"accredited investor" within the meaning of Regulation D under the Securities Act of 1933, or a
qualified institutional buyer within the meaning of Rule 144A, and (iv) it is the intention of such
purchaser to acquire such certificates (A) for investment for its own account or (B) for resale in a
transaction exempt from registration under the Securities Act of 1933; provided further, that in
any event, Lessee shall not be required to make Rental Payments, to send notices or to otherwise
deal with respect to matters arising under a Lease with or to more than one individual or entity.
(b) Unless to an affiliate controlling, controlled by or under common control with
Lessor, no assignment, transfer or conveyance permitted by this Section 11.01 shall be effective
until Lessen shall have received a written notice of assignment that discloses the name and
IS
P57
address of each such assignee; provided, that if such assignment is made to a bank or trust
company as trustee or paying agent for owners of certificates of participation, trust certificates or
partnership interests with respect to the Rental Payments payable under a Lease, it shall
thereafrer be sufficient that Lessee receives notice of the name and address of the bank or trust
company as trustee or paying agent. During each Term, Lessee shall keep, or cause to be kept, a
complete and accurate record of all such assignments in form necessazy to comply with
Section 149 of the Code. Lessee shall retain all such notices as a register of all assignees and
shall make all payments to the assignee or assignees designated in such register. Lessee shall not
have the right to and shall not assert against any assignee any claim, counterclaim or other right
Lessee may have against Lessor or the Vendor. Assignments in part may include without
limitation assignment of all of Lessor's security interest in and to the Equipment listed in a
particular Lease and all rights in, to and under the Lease related to such Equipment. The option
granted in this Section may be separately exercised from time to time with respect to the
Equipment listed in each Lease, but such option does not permit the assignment of less than all of
Lessor's interests in the Equipment -isted in a single Lease.
(c) If Lessor notifies Lessee of its intent to assign the Lease, Lessee agrees that it
shall execute and deliver to Lessor a Notice and Acknowledgement of Assignment substantially
in the form of Exhibit F attached to this Lease within five (5) business days after its receipt of
such request.
Section 11.02. Assignment and Subleasing_by Lessee. None of Lessee's right, title, and
interest in, to and under any Lease or any portion of the Equipment may be assigned or encum-
bered by Lessee for any reason.
ARTICLE XII
Section 12.01. Events of De ault Defrned. Any of the following events shall constitute an
"Event of Default" under a Lease:
(a) Failure by Lessee to pay any Rental Payment or other payment required to be paid
under any Lease within 10 days of the date when due as specified herein (other than as resulting
from an event ofnon-appropriation described in Section 3.03);
(b) Failure by Lessee to observe and perform any covenant, condition or agreement
on its part to be observed or performed, other than as referred to in subparagraph (a) above, for a
period of 30 days after written notice specifying such failure and requesting that it be remedied is
given to Lessee by Lessor, unless Lessor shall agree in writing to an extension of such time prior
to its expiration; provided that, if the failure stated in the notice cannot be corrected within the
applicable period, Lessor will not unreasonably withhold its consent to an extension of such time
if corrective action is instituted by Lessee within the applicable period and diligently pursued
until the default is corrected;
(c) Failure by Lessee to maintain, preserve, and keep the Equipment in good repair
and working order, in a condition comparable to that recommended by the manufacturer, and
failure by Lessee to repair or rep-ace any Equipment that has been abused or destroyed;
16
P58
(d) Any statement, representation or warranty made by Lessee in or pursuant to any
Lease or its execution, delivery or performance shall prove to have been false, incorrect,
misleading, or breached in any material respect on the date when made;
(e) Any default occurs under any other agreement for borrowing money, lease
financing of property or otherwise receiving credit under which Lessee is an obligor under which
there is outstanding, owing or committed an aggregate amount of at least 10% of Lessee's
aggregate current long- and short-term indebtedness, if such default consists of (i) the failure to
pay any indebtedness when due or (ii) the failure to perform any other obligation thereunder and
gives the holder of the indebtedness the right to accelerate the indebtedness;
(f) Lessee shall (i) apply for or consent to the appointment of a receiver, trustee,
custodian or liquidator of Lessee, or of all or a substantial part of the assets of Lessee, (ii) be
unable, fail or admit in writing its inability generally to pay its debts as they become due,
(iii) make a general assignment for the benefit of creditors, (iv) have an order for relief entered
against it under applicable federal bankruptcy law, or (v) file a voluntary petition in bankruptcy
or a petition or an answer seeking reorganization or an arrangement with creditors or taking
advantage of any insolvency law or any answer admitting the material allegations of a petition
filed against Lessee in any bankruptcy, reorganization, moratorium or insolvency proceeding; or
(g) An order, judgment or decree shall be entered by any court of competent
jurisdiction, approving a petition or appointing a receiver, trustee, custodian or liquidator or
Lessee or of all or a substantial part of the assets of Lessee, in each case without its application,
approval or consent, and such order, judgment or decree shall continue unstayed and in effect for
any period of 30 consecutive days.
Section 12.02. Remedies on Default. Whenever any Event of Default exists, Lessor shall
have the right, at its sole option without any further demand or notice, to take one or any
combination of the following remedial steps:
(a) By written notice to Lessee, Lessor may declare all Rental Payments payable by
Lessee pursuant to the outstanding Leases and this Agreement and other amounts payable by
Lessee under the outstanding Leases and this Agreement to the end of their respective Terms to
be due;
(b) With or without terminating the Term under such Lease, Lessor may enter the
premises where the Equipment listed in such Lease is located and retake possession of such
Equipment or require Lessee at Lessee's expense to promptly return any or all of such
Equipment to the possession of Lessor at such place within the United States as Lessor shall
specify, and sell or lease such Equipment or, for the account of Lessee, sublease such
Equipment, continuing to hold Lessee liable, but solely from legally available funds, for the
difference between (i) the Rental Payments payable by Lessee pursuant to such Lease and other
amounts related to such Lease or the Equipment listed therein that are payable by Lessee to the
end of the applicable Term of such Lease, and (ii) the net proceeds of any such sale, leasing or
subleasing (afrer deducting all expenses of Lessor in exercising its remedies under such Lease,
including without limitation all expenses of taking possession, storing, reconditioning and selling
or leasing such Equipment and all brokerage, auctioneer's and attorney's fees), subject, however,
t7
P59
to the provisions of Section 3.03. The exercise of any such remedies respecting any such Event
of Default shall not relieve Lessee of any other liabilities under any other Lease or the
Equipment listed therein; and
(c) Lessor may terminate any or all outstanding Leases and/or this Agreement.
(d) Lessor may take whatever action at law or in equity may appear necessary or
desirable to enforce its rights under such Lease or as a secured party in any or all of the
Equipment subject to such Lease.
Section 12.03. No Remedv Exclusive. No remedy herein conferred upon or reserved to
Lessor is intended to be exclusive and every such remedy shall be cumulative and shall be in
addition to every other remedy given under a Lease now or hereafrer existing at law or in equity.
No delay or omission to exercise any right or power accruing upon any default shall impair any
such right or power or shall be construed to be a waiver thereof, but any such right or power may
be exercised from time to time and as often as may be deemed expedient. In order to entitle
Lessor to exercise any remedy reserved to it in this Article it shall not be necessary to give any
notice other than such notice as may be required in this Article.
Section 12.04. Application of Moneys. Any net proceeds from the exercise of any
remedy under this Agreement, including the application specified in Section 12.02(b)(ii) (after
deducting all expenses of Lessor in exercising such remedies including without limitation all
expenses of taking possession, storing, reconditioning and selling or leasing Equipment and all
brokerage, auctioneer's or attorney's fees), shall be applied as follows:
(a) If such remedy is exercised solely with respect to a single Lease, Equipment listed
in such Lease or rights thereunder, then to amounts due pursuant to such Lease and other
amounts related to such Lease or such Equipment.
(b) If such remedy is exercised with respect to more than one Lease, Equipment listed
in more than one Lease or rights under more than one Lease, then to amounts due pursuant to
such Leases pro rata.
ARTICLE XIII
Section 13.01. Notices. All notices, certificates or other communications under any
Lease shall be sufficiently given and shall be deemed given when delivered or mailed by
registered mail, postage prepaid, or delivered by overnight courier, or sent by facsimile
transmission (with electronic confirmation) to the parties hereto at the addresses immediately
after the signatures to this Agreement (or at such other address as either party hereto shall
designate in writing to the other for notices to such party) and to any assignee at its address as it
appeazs on the registration books maintained by Lessee.
Section 13.02. Binding_E(Ject. Each Lease shall inure to the benefit of and shall be
binding upon Lessor and Lessee and their respective successors and assigns.
18
P60
Section 13.03. Severability. In the event any provision of any Lease shall be held invalid
or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or
render unenforceable any other provision hereof.
Section 13.04. Arnendments. ChanPes and Modi lcations. This Agreement and each
Lease may only be amended by Lessor and Lessee in writing.
Section 13.05. Execution in Counterparts. This Agreement and each Lease may be
simultaneously executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
Section 13.06. ~licable Law. This Agreement and each Lease shall be governed by
and construed in accordance with the laws of the State.
Section 13.07. Captions. The captions or headings in this Agreement and in each Lease
are for convenience only and in no way define, limit or describe the scope or intent of any
provisions or sections of this Agreement or any Lease.
19
P61
IN WITNESS WHEREOF, Lessor and Lessee have caused this Agreement to be executed in
their names by their duly authorized representatives as of the date first above written.
LESSOR:
Banc of America Public Capital Corp
555 Califomia Street, 4th Floor
San Francisco, California 94104
Attention: Contract Administration
Fax No.: (415) 765-7373
LESSEE:
Pittsylvania County, Virginia
21 North Main Street
Chatham, Virginia 24531
Attention: County Administrator
Fax No.: (434) 432-7714
By:
Name:
Title:
List of Exhibits
By:
Name: William D. Sleeper
Title: County Administrator
Exhibit A -- Acquisition Fund and Account Control Agreement
Exhibit B-1 -- Schedule of Property
Exhibit B-2 -- Rental Payment Schedule
Exhibit C -- Certificate
Exhibit D-I -- Opinion of Counsel Form
Exhibit D-2 -- Opinion of Bond Counsel Form
Exhibit E -- Acceptance Certificate
Exhibit F -- Notice and Acknowledgement of Assignment
20
Psz
EXxIBIT A
ACQUISITION FUND AND ACCOUNT CON"I'ROL AGREEMENT
(Please see attached.)
A-1
P63
ExHtetT B-1
SCHEDULE OF PROPERTY NO.
Re: Master Equipment Lease Agreement, dated as of February _, 2012, between Banc of
America Public Capital Corp, as Lessor, and Pittsylvania County, Virginia, as Lessee
1. Defned Terms. All terms used herein have the meanings ascribed to them in the
above-referenced Master Equipment Lease Agreement (the "Master Equipment Lease ").
2. Equipment. The following items of Equipment are hereby included under this
Schedule of the Master Equipment Lease.
Quantity Description Serial No. Model No. Location
3. Payment Schedule.
(a) Rental Payments. The Rental Payments shall be in such amounts and payable on
such dates as set forth in the Rental Payment Schedule attached to this Schedule as Exhibit
Rental Payments shall commence on the date on which the Equipment listed in this
Schedule is accepted by Lessee, as indicated in an Acceptance Certificate substantially in the
Form of Exhibit E to the Master Equipment Lease or the date on which sufficient moneys to
purchase the Equipment are deposited for that purpose with an Acquisition Fund Custodian,
whichever is earlier.
(b) Purchase Price Schedule. The Purchase Price on each Rental Payment date for
the Equipment listed in this Schedule shall be the amount set forth For such Rental Payment date
in the "Purchase Price" column of the Rental Payment Schedule attached to this Schedule. The
Purchase Price is in addition to all Rental Payments then due under this Schedule (including the
Rental Payment shown on the same line in the Rental Payment Schedule).
4. Representations, Warranties and Covenants. Lessee hereby represents, warrants
and covenants that its representations, warranties and covenants set forth in the Master
Equipment Lease are true and correct as though made on the date of commencement of Rental
Payments on this Schedule. Lessee further represents and warrants that (a) no Material Adverse
Change in Lessee's financial condition has occurred since the date of the Master Equipment
Lease; (b) the governing body of Lessee has authorized the execution and delivery of this
Agreement and the Leases pursuant to its resolution adopted on February 6, 2012 (which has not
been amended or supplemented); (c) the Equipment described in the Agreement referenced
above is essential to the functions of Lessee or to the services Lessee provides its citizens;
(d) Lessee has an immediate need for, and expects to make immediate use of, substantially all
B-1-1
P64
such Equipment, which will be used by Lessee only for the purpose of performing one or more
of Lessee's governmental or proprietary functions consistent with the permissible scope of its
authority; and (f) Lessee expects and anticipates adequate funds to be available for all future
payments or rent due afrer the current budgetary period.
5. The Lease. The terms and provisions of the Master Equipment Lease (other than
to the extent that they relate solely to other Schedules or Equipment listed on other Schedules)
are hereby incorporated into this Schedule by reference and made a part hereof.
[OPTION: IF ACQUISITION FUND AGREEMENT IS USED:
6. Lease Proceeds. The Lease Proceeds which Lessor shall pay to the Acquisition
Fund Custodian in connection with this Schedule is $ , of which $
is for deposit to the Expense Fund and the balance is for deposit to the Acquisition Fund. It is
expected that by [six (6)J [twelve (12)] months from the date of this Schedule No.
Lessee will have taken possession of all items of Equipment shown above and that a Lessee's
Acceptance Certificate, or Acceptance Certificates, will be signed by Lessee and delivered to
Lessor on or before [six (6)] [twelve (12)] months from the date of this Schedule No.
OR IF VENDOR PAID DIRECTLY USE:
6. Acyuisition Amount. The Acquisition Amount for the Equipment described in this
Schedule to be paid to the Vendor is $ .]
[OPTION: IF ACQUISITION FUND AGREEMENT IS USED:
7. Acquisition Period The Acquisition Period applicable to this Schedule shall end
at the conclusion of the 12`h month following the date hereof ]
[7][8]. Lease Term. The Term of this Lease shall begin on (the
"Commencement Date") and end on [up to 12 year term].
[8][9]. Purchase Option Commencement Date. For purposes of Section 10.01 of the
Lease, the Purchase Option Commencement Date is
[OPTION: IF NO ACQUISITION FUND AGREEMENT IS USED:
[9] [ 10]
Utilization Period Expiration
-•]
The Utilization Period Expiration is
[10][11]. Maximum Ey:eipment Cost. The Maximum Equipment Cost approved on a
cumulative basis under the Lease for this Schedule and all previous Schedules is
(] 1][12]. Contract Rate. The Contract Rate for this Schedule is %.
B-1-2
P65
[OPTION: IF SCHEDULE IS INTENDED TO BE BANK QUALIFIED FOR
PURPOSES OF SECTION 265(B)(3) OF THE CODE, INCLUDE THE FOLLOWING:
_. The Lessee hereby represents that it reasonably expects that the Lessee, together with
all subordinate entities thereof and any other entities which issue obligations on behalf of the
Lessee, will not issue more than $10,000,000 of tax-exempt obligations (other than private
activity bonds, except for qualified 501(c)(3) bonds) during the calendar year in which this
Schedule No. is executed. The Lessee hereby designates its obligations under this Schedule
No. _ as "qualified tax-exempt obligations" for purposes of Section 265(b)(3) of the Code.
(OPTION: IF MOTOR VEHICLES ARE BEING FINANCED:
[12][13]. Registration. Any Equipment that is a motor vehicle is to be registered and
titled as follows:
Any Equipment that is a motor vehicle is to be registered and titled as follows:
(a) Registered Owner:
(b) Lienholder: Banc of America Public Capital Corp
2059 Northlake Pazkway
4th Floor, NE Center Bldg
Tucker, GA 30084
8-1-3
P66
Lessee shall be responsible for the correct titling of all Equipment leased hereunder.
Lessee will cause the original Certificates of Title to be delivered to Lessor for retention in
Lessor's files throughout the term of the Lease.
Dated:
LESSOR:
Banc of America Public Capital Corp
555 California Street, 4th Floor
San Francisco, California 94104
Attention: Contract Administration
LESSEE:
Pittsylvania County, Virginia
21 North Main Street
Chatham, Virginia 24531
Attention: County Administrator
Fax No.: (434) 432-7714
By:
By:
Name: William D. Sleeper
Title: County Administrator
Counterpart No. of manually executed and serially numbered counterparts.
To the extent that this Lease constitutes chattel paper (as defined in the Uniform Commercial
Code), no security interest herein may be created through the transfer or possession of any
Counterpart other than Counterpart No. 1.
B-t-a
P67
EXHIBIT B-2
RENTAL PAYMENT SCHEDULE
Rental
Payment
Date Rental
Payment
Amount Interest
Portion Principal
Portion Outstanding
Balance Purchase
Price
[including
Prepayment
Premium]
Purchase Price is equal to 100% of the Principal components of Rental Payments then
remaining outstanding as of such Rental Payment date, plus any other amounts due and owing
under the Lease. The Purchase Price represents a payment in addition to the Rental Payment
amount due on such Rental Payment date.
For purposes of this Lease, "Taxable Rate, "with respect to the interest component of
Rental Payments, means an annual rate of interest equal to %.
LESSEE:
Pittsylvania County, Virginia
By:
Name: William D. Sleeper
Title: County Administrator
B-2- I
P66
EXHIBIT C
CER'CIFICATE
[MAY 6E MODIFIED AND PROVISIONS INCORPORATED IN GENERAL CERTIFICAT E
PREPARED BY LOCAL BOND COUNSEL)
The undersigned representative of Pittsylvania County, Virginia ("Lessee") certifies as
follows:
A. The following listed persons are duly elected and acting officials of Lessee (the
"Officials ") in the capacity set forth opposite their respective names below and that the facsimile
signatures are true and correct as of the date hereof;
B. The Officials are duly authorized, on behalf of Lessee, to negotiate, execute and
deliver the Master Equipment Lease Agreement dated as of February _ , 2012, and the
Schedule(s) Thereunder and all future Schedule(s) (the "Agreements ") by and between Lessee
and Banc of America Public Capital Corp, and these Agreements are binding and authorized
Agreements of Lessee, enforceable in all respects in accordance with their terms.
Name of Official Title Signature
By:
Title: ,Pittsylvania County,
Virginia
(The signer of this Certificate cannot be listed above as authorized to execute the Agreements.)
G1
P69
EXHIBIT D-t
OPINION OF COUNSEL TO LESSEE
(to be typed on letterhead of counsel)
Banc of America Public Capital Corp
555 California Street, 4th Floor
San Francisco, California 94104
Re: Amendment No to] Schedule of PropeRy No. dated
to Master Equipment Lease Agreement, dated as of February
_, 2012, between Banc of America Public Capital Corp, as Lessor, and Pittsylvania
County, Virginia, as Lessee
Ladies and Gentlemen:
As legal counsel to Pittsylvania County, Virginia ("Lessee "), I have examined (a) an
executed counterpart of a certain Master Equipment Lease Agreement, dated as of February _,
2012, and Exhibits thereto by and between Banc of America Public Capital Corp ("Lessor ") and
Lessee (the "Agreement") and an executed counterpart of Schedule of Property No.
dated , by and between Lessor and Lessee (the "Schedule "), which,
among other things, provides for the lease of certain property listed in the Schedule (the
"Equipment ") and a certain Acquisition Fund and Account Control Agreement among Lessor,
Lessee, and as Acquisition Fund Custodian, dated
(b) an executed counterpart of the ordinances or resolutions of Lessee
which, among other things, authorize Lessee to execute the Agreement and the Schedule and
(c) such other opinions, documents and matters of law as I have deemed necessary in connection
with the following opinions. The Schedule and the terms and provisions of the Agreement
incorporated therein by reference together with the Rental Payment Schedule attached to the
Schedule[, as amended by Amendment No. _ thereto,] are herein referred to collectively as
the "Lease", and the Lease, [easement agreement and subordination docs] and the Acquisition
Fund and Account Control Agreement aze referred to collectively as the "Transaction
Documents."
Based on the foregoing, I am of the following opinions:
1. Lessee is a political subdivision, duly organized and existing under the laws of the
Commonwealth of Virginia.
2. Lessee has the requisite power and authority to lease and acquire the Equipment
and to execute and deliver the Transaction Documents and to perform its obligations under the
Lease. '
3. The Lease has been duly authorized, approved, executed and delivered by and on
behalf of Lessee and the Transaction Documents are valid and binding obligations of Lessee
enforceable in accordance with their respective terms.
D-1
P70
4. The authorization, approval, execution and delivery of the Transaction
Documents and all other proceedings of Lessee relating to the transactions contemplated thereby
have been performed in accordance with all open meeting laws, public bidding laws and all other
applicable state or federal laws; and
5. There is no proceeding pending or threatened in any court or before any
governmental authority or arbitration board or tribunal that, if adversely determined, would
adversely affect the transactions contemplated by the Transaction Documents or the security
interest of Lessor or its assigns, as the case may be, in the Equipment or other collateral
thereunder.
All capitalized terms herein shall have the same meanings as in the Transaction
Documents unless otherwise provided herein. Lessor and its successors and assigns, and any
counsel rendering an opinion on the tax-exempt status of the interest components of the Rental
Payments, are entitled to rely on this opinion.
Printed
Firm: Dated:
Address:
Telephone
D-2
P71
EXHIBIT D-2
OPINION OF BOND COUNSEL
[TO BE PROVIDED BY TROUTMAN SANDERS]
D-1
Piz
EYHIBIT E
ACCEPTANCE CERTIFICATE
Banc of America Public Capital Corp
555 California Street, 4th Floor
San Francisco, California 94104
Re: Schedule of Property No. ,dated , to Master Equipment
Lease Agreement, dated as of February _, 2012 between Banc of America Public
Capital Corp, as Lessor, and Pittsylvania County, Virginia, as Lessee
Ladies and Gentlemen
In accordance with the Master Equipment Lease Agreement (the "Agreement"), the
undersigned Lessee hereby certifies and represents to, and agrees with Lessor as follows:
1. All of the Equipment (as such term is defined in the Agreement) listed in the
above-referenced Schedule of Property (the "Schedule ") has been delivered, installed and
accepted on the date hereof.
2. Lessee has conducted such inspection and/or testing of the Equipment listed in the
Schedule as it deems necessary and appropriate and hereby acknowledges that it accepts the
Equipment for all purposes.
3. Lessee is currently maintaining the insurance coverage required by Section 7.02
of the Agreement.
4. The [Easement Agreement] and [Subordination Agreements] are in force and full
effect as of the date hereof. 1'he Lessee is not in default under any lease agreements relating to
any buildings or land upon which any of the Equipment is located and installed.
5. No event or condition that constitutes, or with notice or lapse of time, or both,
would constitute, an Event of Default (as defined in the Agreement) exists at the date hereof.
Date:
LESSEE:
Pittsylvania County, Virginia
By:
E-1
P73
EXHIBIT E
NOTICE AND ACKNOWLEDGEMENT OFASSIGNMENT
DATED
BANC OF AMERICA PUBLIC CA
it has assigned and sold to [
title and interest in, to and under
~ ] (the "Lease ";
("Equipment Lease ") dated as of February
Virginia ("Lessee ").
PITAL CORP ("Assignor ") hereby gives notice that
1 ("Assignee") all of Assignor's right,
[Schedule of Property] No. [_ ], dated
i to the Master Equipment Lease Agreement
_, 2012, between Assignor and Pittsylvania County,
For purposes of this Notice and Acknowledgment of Assignment (the
"Acknowledgment"), "Lease" means collectively the Lease identified above, together with all
exhibits, schedules, addenda and attachments related thereto, and all certifications and other
documents delivered in connection therewith. The term "Lease" specifically excludes all other
[Schedules of Property] entered into under the Equipment Lease and rental payments other than
with respect to the [Schedule of Property] identified above. Each capitalized term used but not
defined herein has the meaning set forth in the Equipment Lease described above.
1. Pursuant to the authority of a resolution adopted on February 6, 2012, Lessee
hereby acknowledges the effect of the assignment of the Lease and absolutely and
unconditionally agrees to deliver to Assignee all rental payments and other amounts coming due
under the Lease in accordance with the terms thereof on and after the date of this
Acknowledgment.
2. Lessee hereby agrees that: (i) Assignee shall have all the rights of Lessor under
the Lease and all related documents, including, but not -imited to, the rights to issue or receive all
notices and reports, to give all consents or agreements to modifications thereto, to receive title to
the equipment in accordance with the terms of the Lease, to declare a default and to exercise all
remedies thereunder; and (ii) except as provided in Section [] of the Lease, the obligations
of Lessee to make rental payments and to perform and observe the other covenants and
agreements contained in the Lease shall be absolute and unconditional in all events without
abatement, diminution, deduction, set-off or defense.
3. Lessee agrees that, as of the date of this Acknowledgment, the following
information about the Lease is true, accurate and complete:
Number of Rental Payments Remaining -
Amount of Each Rental Payment -
Total Amount of Rents Remaining -
Frequency of Rental Payments -
Next Rental Payment Due -
Funds Remaining in Escrow Fund -
F-I
P74
4. The Lease remains in full force and effect, has not been amended and no
nonappropriation or event of default (or event which with the passage of time or the giving of
notice or both would constitute a default) has occurred thereunder.
5. Any inquiries of Lessee related to the Lease and any requests for escrow
disbursements, if applicable, and all rental payments and other amounts coming due pursuant to
the Lease on and after the date of this Acknowledgment should be remitted to Assignee at the
following address (or such other address as provided to Lessee in writing from time to time by
Assignee):
ACKNOWLEDGEll AND AGREED:
LESSEE: PIT1'SYLVANIA COUNTY, VIRGINIA
[FOR EXHIBIT PURPOSES ONLY]
By:
Name
Title:
ASSIGNOR: BANC OF AMERICA PUBLIC CAPITAL CORD
[FOR EXHIBIT PURPOSES ONLY]
By:
Name:
Title:
F-2
55178.000259 EMF US 38593S42v2
P75
SCHEDULE OF PROPERTY NO. 1
Re: Master Equipment Lease Agreement, dated as of February _, 2012, between Banc of
America Public Capital Corp, as Lessor, and Pittsylvania County, Virginia, as Lessee
1. Defined Terms. All terms used herein have the meanings ascribed to them in the
above-referenced Master Equipment Lease Agreement (the "Muster Equipment Lease ").
2. Equipment. The items of Equipment described in the attached Exhibit A are
hereby included under this Schedule of the Master Equipment Lease.
3. Payment Schedule.
Rental Payments. The Rental Payments shall be in such amounts and payable on such
dates as set forth in the Rental Payment Schedule attached to this Schedule as Exhibit B. Rental
Payments shall commence on the date on which the Equipment listed in this Schedule is
accepted by Lessee, as indicated in an Acceptance Certificate substantially in the form of Exhibit
E to the Master Equipment Lease or the date on which sufficient moneys to purchase the
Equipment are deposited for that purpose with an Acquisition Fund Custodian, whichever is
earlier.
Purchase Price Schedule. The Purchase Price on each Rental Payment date for the
Equipment listed in this Schedule shall be the amount set forth for such Rental Payment date in
the "Purchase Price" column of the Rental Payment Schedule attached to this Schedule. The
Purchase Price is in addition to all Rental Payments then due under this Schedule (including the
Rental Payment shown on the same line in the Rental Payment Schedule).
4. Representations, Warranties and Covenants. Lessee hereby represents, warrants
and covenants that its representations, warranties and covenants set forth in the Master
Equipment Lease are true and correct as though made on the date of commencement of Rental
Payments on this Schedule. Lessee further represents and warrants that (a) no Material Adverse
Change in Lessee's financial condition has occurred since the date of the Master Equipment
Lease; (b) the governing body of Lessee has authorized the execution and delivery of this
Agreement and the Leases pursuant to its resolution adopted on February 6, 2012 (which has not
been amended or supplemented); (c) the Equipment described in the Agreement referenced
above is essential to the functions of Lessee or to the services Lessee provides its citizens;
(d) Lessee has an immediate need for, and expects to make immediate use of, substantially all
such Equipment, which will be used by Lessee only for the purpose of performing one or more
of Lessee's governmental or proprietary functions consistent with the permissible scope of its
authority; and (fj Lessee expects and anticipates adequate funds to be available for all future
payments or rent due after the current budgetazy period.
5. The Lease. The terms and provisions of the Master Equipment Lease (other than
to the extent that they relate solely to other Schedules or Equipment listed on other Schedules)
are hereby incorporated into this Schedule by reference and made a part hereof.
6. Lease Proceeds. The Lease Proceeds which Lessor shall pay to the Acquisition
Fund Custodian in connection with this Schedule is $ , of which $
Pis
is for deposit to the Expense Fund and the balance is for deposit to the Acquisition Fund. It is
expected that by twelve (12) months from the date of this Schedule No. 1, Lessee will have taken
possession of all items of Equipment shown above and that a Lessee's Acceptance Certificate, or
Acceptance Certificates, will be signed by Lessee and delivered to Lessor on or before twelve
(12) months from the date of this Schedule No. 1.
7. Acquisition Period. The Acquisition Period applicable to this Schedule shall end
at the conclusion of the 12~h month following the date hereof.
8. Lease Term. The Perm of this Lease shall begin on
"Commencement Date") and end on , 2024.
(the
9. Purchase Option Commencement Date. For purposes of Section 10.01 of the
Lease, the Purchase Option Commencement Date is , 2018.
10. Maximum Equipment Cost. The Maximum Equipment Cost approved on a
cumulative basis under the Lease for this Schedule and all previous Schedules is [$13,600,000].
11. Contract Rate. The Contract Rate for this Schedule is 2.50%.
2
P77
Dated:
LESSOR:
Banc of America Public Capital Corp
555 California Street, 4th Floor
San Francisco, California 94104
Attention: Contract Administration
LESSEE:
Pittsylvania County, Virginia
21 North Main Street
Chatham, Virginia 24531
Attention: County Administrator
Fax No.: (434) 432-7714
By:
By:
Name: William D. Sleeper
Title: County Administrator
Counterpart No. of manually executed and serially numbered counterparts.
To the extent that this Lease constitutes chattel paper (as defined in the Uniform Commercial
Code), no security interest herein may be created through the transfer or possession of any
Counterpart other than Counterpart No. 1.
3
P78
Ex[itstT A
EQutrmENT LISTING
The Lessee may finance the following equipment or such other equipment as Lessor and
Lessee may agree to substitute for purposes of this Schedule:
Site #1
uantit Description
Site #2 (etch
uantit Descr~tion
P79
EXHIBIT B
RENTAL PAYMENT SCHEDULE
Rental
Payment
Date Rental
Payment
Amount Interest
Portion Principal
Portion Outstanding
Balance Purchase
Price
[including
Prepayment
Premium]
Purchase Price is equal to 100% of the Principal components of Rental Payments then
remaining outstanding as of such Rental Payment date, plus any other amounts due and owing
under the Lease. The Purchase Price represents a payment in addition to the Rental Payment
amount due on such Rental Payment date.
For purposes of this Lease, "Taxable Rate, " with respect to the interest component of
Rental Payments, means an annual rate of interest equal to %.
LESSEE:
Pittsylvania County, V irginia
By:
Name: William D. Sleeper
Title: County Administrator
55178.000259 EMF_US 38607479v2
P80
ACQUISITION FUND AND ACCOUNT CONTROL AGREEMENT
This Acquisition Fund and Account Control Agreement (this "Agreement"), dated as
of February _, 2012, by and among Banc of America Public Capital Corp, a Kansas
corporation (together with its successors and assigns, hereinafter referred to as "Lessor"),
Pittsylvania County, Virginia, apolitical subdivision of the Commonwealth of Virginia
(hereinafter referred to as "Lessee"), and Deutsche Bank National Trust Company, a national
banking company (hereinafer referred to as "Acquisition Fund Custodian").
Reference is made to that certain Master Equipment Lease Agreement dated as of
February _, 2012, between Lessor and Lessee (the "Master Lease"), together with Schedule No.
1 dated as of February _, 2012 (the "Schedule", and together with the Master Lease, the
"Lease"), covering the acquisition and financing of certain Equipment described therein (the
"Equipment"). Capitalized terms used herein not otherwise defined are used with the meanings
given in the Lease. Lessee and Lessor have agreed that all or a portion of the Equipment Cost in
the amount of [$13,600,000] ("Equipment Cost") shall be deposited into an account or accounts
held by the Acquisition Fund Custodian under terms satisfactory to Lessor, for the purpose of
fully funding the Lease, and providing a mechanism for the application of such amounts to the
purchase of and payment for the Equipment on or before [February _, 2013], the date
designated as the end of the Acquisition Period in the Schedule (the "Acquisition Period").
The parties agree as follows:
1. Creation of Acquisition Fund.
(a) The Acquisition Fund Custodian shall establish an account or accounts for the
purposes stated herein, into which the Equipment Cost shall be deposited or invested for the
benefit of Lessor and Lessee, which account(s) shall be held, disbursed and returned in
accordance with the terms hereof (the "Acquisition Fund"). The parties acknowledge and agree
that all amounts in the Acquisition Fund are deposits of public funds and shall be held by the
Acquisition Fund Custodian and all intermediaries in accordance with applicable Federal and
state law and regulations.
(b) The Acquisition Fund Custodian shall invest and reinvest moneys on deposit in
the Acquisition Fund in Qualified Investments in accordance with written instructions received
from Lessee. Lessee shall be solely responsible for ascertaining that all proposed investments
and reinvestments are Qualified Investments and that they comply with federal, state and local
laws, regulations and ordinances governing investment of such funds and for providing
appropriate notice to the Acquisition Fund Custodian for the reinvestment of any maturing
investment. Accordingly, neither the Acquisition Fund Custodian nor Lessor shall be
responsible for any liability, cost, expense, loss or claim of any kind, directly or indirectly arising
out of or related to the investment or reinvestment of all or any portion of the moneys on deposit
in the Acquisition Fund, and Lessee agrees to and does hereby release the Acquisition Fund
Custodian and Lessor from any such liability, cost, expenses, loss or claim. Interest on the
Acquisition Fund shall become part of the Acquisition Fund, and gains and losses on the
investment of the moneys on deposit in the Acquisition Fund shall be borne by the Acquisition
Fund. "Qualified Investments" means investments permitted for funds of a local government
P87
under the laws of the State, including, but not limited to, the Virginia State Non-Arbitrage
Program.
(c) Unless the Acquisition Fund is earlier terminated in accordance with the
provisions of paragraph (d) below, amounts in the Acquisition Fund shall be disbursed by the
Acquisition Fund Custodian in payment of amounts described in Section 2 hereof upon receipt of
written authorization(s) from Lessor, as is more fully described in Section 2 hereof. If the
amounts in the Acquisition Fund are insufficient to pay such amounts, Lessee shall provide any
balance of the funds needed to complete the acquisition of the Equipment. The Acquisition Fund
Custodian shall have no obligation to notify Lessor or Lessee of any such shortfall and it shall be
the sole responsibility of Lessee to supplement the Acquisition Fund as necessary to complete
the Equipment acquisition. Any moneys remaining in the Acquisition Fund after the expiration
of the Acquisition Period (February _, 2013) shall be applied as provided in Section 4 hereof.
The Acquisition Fund Custodian shall not be responsible for any market decline in the value of
the Acquisition Fund and has no obligation to notify Lessor or Lessee of any such decline or take
any action with respect to the Acquisition Fund, except upon specific written directions stated
herein. In the event that conflicting instructions as to the disposition of all or any portion of the
Acquisition Fund aze at any time given by Lessor and Lessee, the Acquisition Fund Custodian
shall abide by the instructions or entitlement orders given by Lessor without consent of Lessee.
(d) The Acquisition Fund shall be terminated at the earlier of (i) the final distribution
of amounts in the Acquisition Fund, or (ii) written notice given by Lessor of the occurrence of a
default or of a termination of the Lease due to non-appropriation.
(e) The Acquisition Fund Custodian may act in reliance upon any writing or
instrument or signature which it, in good faith, believes to be genuine and may assume the
validity and accuracy of any statement or assertion contained in such a writing or instrument.
The Acquisition Fund Custodian shall not be liable in any manner for the sufficiency or
corectness as to form, manner of execution, or validity of any instrument nor as to the identity,
authority, or right of any person executing the same; and its duties hereunder shall be limited to
the receipt of such moneys, instruments or other documents received by it as the Acquisition
Fund Custodian, and for the disposition of the same in accordance herewith.
(f) Lessor and Lessee agree that as long as the Acquisition Fund Custodian shall have
acted (or refrained from acting) in good faith and in accordance with the instructions given to it
by Lessor and Lessee, or, if conflicting instructions aze given, then those given to it by Lessor, it
shall not be liable for any error of judgment in any action taken, suffered or omitted by, or for
any mistake of fact or law, unless such action or inaction constitutes gross negligence or willful
misconduct. In no event shall the Acquisition Fund Custodian be liable for indirect, special or
consequential damages of any kind whatsoever (including lost profits and lost business
opportunities).
(g) Unless the Acquisition Fund Custodian is guilty of gross negligence or willful
misconduct with regazd to its duties hereunder, Lessee agrees (to the extent permitted by law) to
and does hereby release and indemnify the Acquisition Fund Custodian and hold it harmless
from any and all claims, liabilities, losses, actions, suits or proceedings at law or inequity, or any
other expense, fees or charges of any character or nature, which it may incur or with which it
2
P82
may be threatened by reason of its acting as Acquisition Fund Custodian under this Agreement;
and in connection therewith, does to the extent permitted by law indemnify the Acquisition Fund
Custodian against any and all expenses; including reasonable attorneys' fees and the cost of
defending any action, suit or proceeding or resisting any claim.
(h) If Lessee and Lessor shall be in disagreement about the interpretation of the
Lease, or about the rights and obligations, or the propriety of any action contemplated by the
Acquisition Fund Custodian hereunder, the Acquisition Fund Custodian may, but shall not be
required to, file an appropriate civil action to resolve the disagreement. The Acquisition Fund
Custodian shall be reimbursed by Lessee for all costs, including reasonable attorneys' fees, in
connection with such civil action, and shall be fully protected in suspending all or part of its
activities under the Lease until a final judgment in such action is received.
(i) The Acquisition Fund Custodian may consult with counsel of its own choice and
shall have full and complete authorization and protection with the opinion of such counsel. The
Acquisition Fund Custodian shall otherwise not be liable for any mistakes of fact or errors of
judgment, or for any acts or omissions of any kind unless caused by its willful misconduct.
(j) Lessee shall reimburse the Acquisition Fund Custodian for all reasonable costs
and expenses, including those of the Acquisition Fund Custodian's attorneys, agents and
employees incurred for extra-ordinary administration of the Acquisition Fund and the
performance of the Acquisition Fund Custodian's powers and duties hereunder in connection
with any Event of Default under the Lease, or in connection with any dispute between Lessor
and Lessee concerning the Acquisition Fund, or otherwise related to the exercise of the
Acquisition Fund Custodian's powers and duties hereunder.
(k) Upon the prior written agreement of Lessor and Lessee, a national banking
association located in the United States or a state bank or trust company organized under the
laws of a state of the United States, qualified as a depository for public funds, may be substituted
to act as Acquisition Fund Custodian under this Agreement, and any substitution shall not be
deemed to affect the rights or obligations of the parties hereto. Upon any such substitution, the
Acquisition Fund Custodian agrees to assign to such substitute custodian its rights and
obligations under this Agreement. The Acquisition Fund Custodian or any successor may at any
time resign by giving mailed notice to Lessee and Lessor of its intention to resign and of the
proposed date of resignation, which shall be a date not less than 30 days after such notice is
deposited in the United States mail with postage fully prepaid, unless an earlier resignation date
and the appointment of a successor shall have been or are approved by Lessee and Lessor. Upon
delivery of such notice, the Acquisition Fund Custodian shall be under no further obligation
except to hold the Acquisition Fund in accordance with the terms of this Agreement, pending
receipt of written instructions from Lessor regarding further disposition of the Acquisition Fund.
Except as otherwise specifically provided herein, the Acquisition Fund Custodian may not
delegate, transfer or assign any of the rights, duties, powers or remedies granted to the
Acquisition Fund Custodian hereunder without the prior written consent of Lessee and Lessor.
(1) The Acquisition Fund Custodian shall have no discretion whatsoever with respect
to the management, disposition or investment of the Acquisition Fund and is not a trustee or
fiduciary to Lessee. The Acquisition Fund Custodian shall have no responsibilities, obligations
3
P83
or duties other than those expressly set forth in this Agreement, and no fiduciary or implied
duties, responsibilities or obligations shall be read into this Agreement.
(m) The Acquisition Fund Custodian shall be excused from failing to act or delay in
acting, and no such failure or delay shall constitute a breach of this Agreement, or otherwise give
rise to any liability of Acquisition Fund Custodian if (i) such failure or delay is caused by
circumstances beyond Acquisition Fund Custodian's reasonable control, including, but not
limited to legal constraint, emergency conditions, action or inaction of governmental, civil or
military authority, fire, strike, lockout or other labor dispute, war, riot, theft, flood, earthquake or
other natural disaster, breakdown of public or common carrier communications or transmission
facilities, equipment failure, or gross negligence or willful misconduct of Lessor or Lessee, or
(ii) such failure or delay resulted from Acquisition Fund Custodian's reasonable belief based
upon the advice of counsel that the action would have violated any guideline, rule or regulation
of any govemmental authority.
2. Acquisition of Property.
(a) Acquisition Contracts. Lessee will arrange for, supervise and provide for, or
cause to be supervised and provided for, the acquisition of the Equipment, with moneys available
in the Acquisition Fund. Lessee represents to Lessor that the estimated costs of the Equipment
are within the funds estimated to be available therefor, and Lessor makes no warranty or
representation with respect thereto. Lessor shall have no liability under any of the acquisition or
construction contracts. Lessee shall obtain all necessary permits and approvals, if any, for the
acquisition, equipping and installation of the Equipment, and the operation and maintenance
thereof.
(b) Authorized Acquisition Fund Disbursements. Disbursements from the
Acquisition Fund shall be made for the purpose of paying (including the reimbursement to
Lessee for advances from its own funds to accomplish the purposes hereinafter described) the
cost of acquiring the Equipment. The Acquisition Fund Custodian shall not be responsible for
monitoring the use of the funds disbursed from the Acquisition Fund.
(c) Lessee Requisition Procedure. No disbursement from the Acquisition Fund shall
be made unless and until Lessor has approved such requisition. Prior to disbursement from the
Acquisition Fund, there shall be filed with the Acquisition Fund Custodian a requisition for such
payment in the form of Disbursement Request attached hereto as Schedule 1, stating each
amount to be paid and the name of the person, firm or corporation to whom payment thereof is
due. Each such requisition shall be signed by an authorized representative of Lessee (an
"Authorized Representative") and by Lessor, and shall be subject to the following:
1. Delivery to Lessor of a certificate of Lessee (and, as to item (v) below,
acknowledged by the vendor) to the effect that:
(i) an obligation in the stated amount has been incurred by
Lessee, and that the same is a proper chazge against the
Acquisition Fund for costs relating to the Equipment
identified in the Lease, and has not been paid; (ii) the
4
P84
Authorized Representative has no notice of any vendor's,
mechanic's or other liens or rights to liens, chattel
mortgages, conditional sales contracts or security interest
which should be satisfied or discharged before such
payment is made; (iii) such requisition contains no item
representing payment on account, or any retained
percentages which Lessee is, at the date of such certificate,
entitled to retain; (iv) the Equipment is insured in
accordance with the Lease and (v) the amounts to be paid
pursuant to the requisition represent payment for work
which has been performed or equipment which has been
delivered and accepted by Lessee;
2. Delivery to Lessor of an Acceptance Certificate executed by Lessee, together
with any bill of sale and invoice therefor as required by Section 5.01 of the
Lease;
3. The disbursement shall occur during the Acquisition Period set forth in the
Schedule applicable to such Equipment;
4. There shall exist no Event of Default (nor any event which, with notice or
lapse of time or both, would become an Event of Default);
5. Lessee shall certify to Lessor that Lessee has lawfully budgeted and
appropriated funds for the purpose of meeting its Rental Payment obligations
under the Lease during Lessee's then current fiscal year.
6. No material adverse change in Lessee's or any guarantor's financial condition
shall have occurred since the date of the Lease.
The Acquisition Fund Custodian shall be under no obligation to verify that Lessee has
complied with the requisition procedure described in this Section 2 or that any information set
forth in the Disbursement Request is accurate and complete, and shall rely solely on Lessor's and
Lessee's respective signatures on the Disbursement Request as evidencing Lessor's approval of
the Disbursement Request and Lessor's and Lessee's authorization to make the disbursements to
the payee or payees as described therein. The Acquisition Fund Custodian shall have a
commercially reasonable time period to act on the instruction and disburse the funds as directed.
3. Deposit to Acquisition Fund. Upon satisfaction of the conditions specified in
Section 3.04 of the Lease, Lessor will cause the Lease Proceeds to be deposited in the
Acquisition Fund. Lessee agrees to pay any costs with respect to the Equipment in excess of
amounts available therefor in the Acquisition.
4. Excess in Acquisition Fund. Following the final disbursement from the
Acquisition Fund at the end of the Acquisition Period, or termination of the Acquisition Fund as
otherwise provided herein, the Acquisition Pund Custodian shall transfer any remaining amounts
in the Acquisition Fund to Lessor. Lessor shall be responsible for application of such remaining
5
P85
amounts to payment of Lessee's obligations owed under the Lease in accordance with
Section 4.07 of the Lease.
S. Securit~Interest. The Acquisition Fund Custodian and Lessee acknowledge and
agree that the Acquisition Fund and all proceeds thereof are being held by Acquisition Fund
Custodian for disbursement or return as set forth herein. Lessee hereby grants to Lessor a first
priority perfected security interest in the Acquisition Fund, and all proceeds thereof, and all
investments made with any amounts in the Acquisition Fund. If the Acquisition Fund, or any
part thereof, is converted to investments as set forth in this Agreement to be held by Acquisition
Fund Custodian, such investments shall be held by Acquisition Fund Custodian in the name of
Lessee, and the Acquisition Fund Custodian hereby agrees to hold any such investments as
bailee for Lessor so that Lessor is deemed to have possession of such investments for the purpose
of perfecting its security interest.
6. Control of Acquisition Account. Lessor, Lessee and Acquisition Fund Custodian
are entering into this Agreement in order to perfect Lessor's security interest in any portion of
the Acquisition Fund held by Acquisition Fund Custodian by means of control as defined in
Article 8 of the Uniform Commercial Code. In order to perfect Lessor's security interest by
means of control in (i) the Acquisition Fund established hereunder, (ii) all securities entitlements,
investment property and other financial assets now or hereafter credited to the Acquisition Fund,
(iii) all of Lessee's rights in respect of the Acquisition Fund, such securities entitlements,
investment property and other financial assets, and (iv) all products, proceeds and revenues of
and from any of the foregoing personal property (collectively, the "Collateral"), Lessor, Lessee
and Acquisition Fund Custodian further agree as follows:
(a) All terms used in this Section 6 which aze defined in the Commercial Code of the
State ("Commercial Code") but are not otherwise defined herein shall have the meanings
assigned to such terms in the Commercial Code, as in effect on the date of this Agreement.
(b) Acquisition Fund Custodian will comply with all written instructions and
entitlement orders originated by Lessor with respect to the Collateral, or any portion of the
Collateral, without further consent by Lessee. Receipt of written instructions from Lessor to
disburse all or any portion of the Acquisition Fund in accordance with a Disbursement Request
or entitlement order shall constitute authorization to the Acquisition Fund Custodian to redeem
investments held with the Acquisition Custodian or its affiliates to the extent necessary to
comply with such request, and shall constitute authorization to deliver the proceeds of such
redemption to Lessee's deposit account with the Acquisition Fund Custodian or directly to the
Lessor for disbursement in accordance with this Agreement.
(c) Acquisition Fund Custodian hereby represents and warrants (a) that the records of
Acquisition Fund Custodian show that Lessee is the sole owner of the Collateral, (b) that
Acquisition Fund Custodian has not received any notice of any security interest in or other claim
to the Collateral, or any portion of the Collateral, other than Lessor's claim pursuant to this
Agreement, and (c) that Acquisition Fund Custodian is not presently obligated to accept any
entitlement order from any person with respect to the Collateral, except for written instructions
and entitlement orders that Acquisition Fund Custodian is obligated to accept from Lessor under
6
P66
this Agreement and entitlement orders that Acquisition Fund Custodian, subject to the provisions
of pazagraph (e) below, is obligated to accept from Lessee.
(d) Without the prior written consent of Lessor, Acquisition Fund Custodian will not
enter into any agreement by which Acquisition Fund agrees to comply with any entitlement order
of any person other than Lessor or, subject to the provisions of paragraph (e) below, Lessee, with
respect to any portion or all of the Collateral. Acquisition Fund Custodian shall promptly notify
Lessor if any person requests Acquisition Fund Custodian to enter into any such agreement or
otherwise asserts or seeks to assert a lien, encumbrance or adverse claim against any portion or
all of the Collateral.
(e) Except as otherwise provided in this paragraph (e) and subject to Section 1(b)
hereof, Lessor hereby instructs Acquisition Fund Custodian to allow Lessee, if applicable, to
effect sales, trades, transfers and exchanges of Collateral within the Acquisition Fund, but will
not, without the prior written consent of Lessor, allow Lessee to withdraw any Collateral from
the Acquisition Fund. Acquisition Fund Custodian acknowledges that Lessor reserves the right,
by delivery of written notice to Acquisition Fund Custodian, to prohibit Lessee from effecting
any withdrawals (including withdrawals of ordinary cash dividends and interest income), sales,
trades, transfers or exchanges of any Collateral held in the Acquisition Fund. Further,
Acquisition Fund Custodian hereby agrees to comply with any and all written instructions
delivered by Lessor to Acquisition Fund Custodian (once it has had a reasonable opportunity to
comply therewith) and has no obligation to, and will not, investigate the reason for any action
taken by Lessor, the amount of any obligations of Lessee to Lessor, the validity of any of
Lessor's claims against or agreements with Lessee, the existence of any defaults under such
agreements, or any other matter.
(f) Lessee hereby irrevocably authorizes Acquisition Fund Custodian to comply with
all instructions and entitlement orders delivered by Lessor to Acquisition Fund Custodian.
(g) Acquisition Fund Custodian will not attempt to assert control, and does not claim
and will not accept any security or other interest in, any part of the Collateral, and Acquisition
Fund Custodian will not exercise, enforce or attempt to enforce any right of setoff against the
Collateral, or otherwise chazge or deduct from the Collateral any amount whatsoever, except that
Acquisition Fund Custodian may, from time to time, debit the Acquisition Fund for customary
charges due to it for maintaining the account(s) related to the Acquisition Fund that have not
been separately paid or reimbursed. Lessor and Lessee instruct Acquisition Fund Custodian to
charge any and all account adjustments, returned deposit items and overdrafts associated with the
Acquisition Fund to the Acquisition Fund; or, if sufficient collected and available funds do not
exist in the Acquisition Fund to cover the account charges, any other of Lessee's accounts held
by the Acquisition Fund Custodian. Promptly after, or contemporaneously with, Acquisition
Fund Custodian's notice to Lessee that any of the account charges have not been paid or
reimbursed, Acquisition Fund Custodian may seek reimbursement directly from the Lessee for
all such amounts, which reimbursement shall be made immediately to the Acquisition Fund
Custodian, without cost to the Acquisition Fund Custodian. The Acquisition Fund Custodian
shall be vested with a lien on and is hereby granted a security interest in the Collateral
subordinate in all respects to the first and prior lien of the Lessor, but only to the extent that it
incurs (i) out of pocket costs, expenses, or other costs, expenses or losses for which it is
7
P87
indemnified by Lessee under this Agreement, (ii) reasonable attorneys' fees, court costs, for any
suit, interpleader or otherwise in connection with the performance of its obligations under this
Agreement, or (iii) any related expenses, fees or charges by reason of disputes arising between
Lessee and Lessor as to the correct interpretation of this Agreement or the Lease and instructions
given to the Acquisition Fund Custodian hereunder. Acquisition Fund Custodian, regardless of
the instructions aforesaid, shall have the right to hold the Collateral until and unless said
additional expenses, fees and charges shall be fully paid.
(h) Acquisition Fund Custodian and Lessee hereby agree that any property held in the
Acquisition Fund shall be treated as a financial asset under such section of the Commercial Code
as corresponds with Section 8-102 of the Commercial Code, notwithstanding any contrary
provision of any other agreement to which Acquisition Fund Custodian may be a party.
(i) Acquisition Fund Custodian is hereby authorized and instructed, and hereby
agrees, to send to Lessor at its address set forth in Section 7 below, concurrently with the sending
thereof to Lessee, duplicate copies of any and all monthly Acquisition Fund statements or reports
issued or sent to Lessee with respect to all or any portion of the Acquisition Fund held by the
Acquisition Fund Custodian.
7. Escrow Agent's Fees and Expenses. The Lessee, agree to pay the fees and
expenses of the Escrow Agent as described in Schedule A appended to this Agreement for so
long as any portion of the Escrow Fund is held by the Escrow Agent.
8. Miscellaneous. Capitalized terms not otherwise defined herein shall have the
meanings assigned to them in the Lease. This Agreement may not be amended except in writing
signed by all parties hereto. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original instrument and each shall have the force and effect of
an original and all of which together constitute, and shall be deemed to constitute, one and the
same instrument. This Agreement shall be binding upon and inure to the benefit of the parties
and their respective successors and assigns permitted hereunder and under the Lease. Notices
hereunder shall be made in writing and shall be deemed to have been duly given when personally
delivered or when deposited in the mail, first class postage prepaid, or delivered to an express
carrier, charges prepaid, or sent by facsimile with electronic confirmation, addressed to each
party at its address below, or such other address as shall be specified in written notice to the
other party:
If to Lessor: Banc of America Public Capital Corp
555 California Street, 4th Floor
Mail Code: CAS-705-04-01
San Francisco, CA 94104
Attn: Contract Administration
Fax: (415)765-7373
If to Lessee: Pittsylvania County, Virginia
21 North Main Street
Chatham, Virginia 24531
Attn: County Administrator
8
P68
Fax: (434)432-7714
If to Acquisition Fund Custodian: Deutsche Bank National Trust Company
1761 East St. Andrew Place
Santa Ana, CA 92705
Attn: Jane Snyder
Phone: (714)247-6038
Fax: (714)247-6035
Pes
IN WITNESS WHEREOF, the parties have executed this Acquisition Fund and Account
Control Agreement as of the date first above written.
Banc of America Public Capital Corp,
as Lessor
Pittsylvania County, Virginia,
as Lessee
By:
Deutsche Bank National Trust Company,
as Acquisition Fund Custodian
Title:
By:
Title:
By:
Title:
P90
SCHEDULEI
FORM OF DISBURSEMENT REQUEST -SCHEDULE # ,
Re: Schedule No. dated to Master Equipment Lease dated as of
February 2012, by and between Banc of America Public Capital Corp, as Lessor, and
Pittsylvania County, Virginia, as Lessee (the "Lease")
In accordance with the terms of the Acquisition Fund and Account Control Agreement
dated as of ~ ~ (the "Acquisition Fund and Account Control Agreement") by
and among Banc of America Public Capital Corp ("Lessor"), Pittsylvania County, Virginia
("Lessee"), and Deutsche Bank National Trust Company (the "Acquisition Fund Custodian"),
the undersigned hereby requests that Lessor instruct the Acquisition Fund Custodian to pay the
following persons the following amounts from the Acquisition Fund created under the
Acquisition Fund and Account Control Agreement (the "Acquisition Fund") for the following
purposes.
I Payee's Name and Address I Invoice Number I Dollar Amount I Puroose I
The undersigned hereby certifies as follows:
(i) An obligation in the stated amount has been incurred by Lessee, and the same is a
proper charge against the Acquisition Fund for costs relating to the Financed Property identified
in the Lease, and has not been paid or has been paid by the Lessee and the Lessee is entitled to be
reimbursed therefor. Attached hereto is the original invoice with respect Co any obligation that is
to be paid to the vendor or provider.
(ii) The undersigned, as Authorized Representative, has no notice of any vendor's,
mechanic's or other liens or rights to liens, chattel mortgages, conditional sales contracts or
security interest which should be satisfied or discharged before such payment is made.
(iii) This requisition contains no item representing payment on account, or any
retained percentages which Lessee is, at the date hereof, entitled to retain.
(iv) The Equipment is insured in accordance with the Lease.
(v} The amounts to be paid pursuant to this requisition represent payment for work
which has been performed or equipment which has been delivered and accepted by Lessee;.
1-1
P91
(vi) No Event of Default, and no event which with notice or lapse of time, or both,
would become an Event of Default, under the Lease has occurred and is continuing at the date
hereof.
(vii) The disbursement shall occur during the Acquisition Period set forth in the
Schedule applicable to such Equipment.
(viii) Lessee has lawfully budgeted and appropriated funds for the purpose of meeting
its Rental Payment obligations under the Lease during the current fiscal year.
(ix) No material adverse change in Lessee's or any guarantor's financial condition
shall have occurred since the date of the Lease.
Dated:
Pittsylvania County, Virginia, as Lessee
under the Lease
By:
Authorized Representative
to item (v) above
Disbursement of funds from the Acquisition
Fund in accordance with the foregoing
Disbursement Request hereby is authorized
By:
(Vendor), as
Authorized Representative
Banc of America Public Capital Corp,
as Lessor under the Lease
By:
Name:
Title:
1-2
55178.000259 EMF_US 38604671 v2
P92
RESOLUTION OF THE BOARD OF SUPERVISORS
OF THE COUNTY OF PITTSYLVANIA, VIRGINIA
AUTHORIZING AND APPROVING THE
EXECUTION AND DELIVERY OF A MANAGEMENT CONTRACT
WHEREAS, the Board of Supervisors of the County of Pittsylvania, Virginia
(the "Board"), has determined that it is necessary and desirable to finance all or a portion of
emergency 911 communication equipment and facilities (the "E-911 System") for the County of
Pittsylvania, Virginia (the "County");
WHEREAS, volunteer lire deparhnents, rescue squads and a specialized life
saving and search and rescue crew that are members (the "Members") of the Pittsylvania County
Fire & Rescue Association (the "Association") will use some of the equipment comprising the E-
911 System (the "Member Equipment") in providing firefighting, rescue and emergency services
to residents of the County; and
WHEREAS, the management of the E-911 System by the Members and their use
of the Member Equipment are set forth in a Management Contract, dated as of February _, 2012
(the "Management Contract"), between the County and the Association, a copy of which has
been submitted to the Board at this meeting;
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF
SUPERVISORS OF THE COUNTY OF PITTSYLVANIA, VIRGINIA:
1. Form of Management Contract. The Management Contract is hereby
approved m the form submitted to this meeting, with such variations, insertions or deletions as
may be approved by the Chaimran or the Vice Chairman of the Board or the County
Administrator, any of whom may act.
2. Execution and Delivery of Management Contract. The Chairman and the
Vice Chairman of the Board and the County Administrator, any of whom may act, are each
authorized and directed to execute the Management Contract.
3. Further Actions. The Chairman and the Vice Chairman of the Board and
the County Administrator, and such officers and agents of the County as may be designated by
any of them, are each authorized and directed to take such further actions as they deem necessary
regarding the execution and delivery of the Management Contract. All such actions previously
taken by the Chairman, the Vice Chairman, the County Administrator or such officers and agents
are hereby approved, ratified and confirmed.
4. Limitation of Liability of Officials of the County. No covenant, condition,
agreement or obligation contained herein shall be deemed to be a covenant, condition, agreement
or obligation of an officer, employee or agent of the County in his or her individual capacity, and
no officer of the County executing the Management Contract shall be liable personally on the
Management Contract or be subject to any personal liability or accountahility by reason of the
execution and delivery thereof. No officer, employee or agent of the County shall incur any
personal liability with respect to any other action taken by him or her pursuant to this Resolution,
provided he or she acts in good faith.
Effective Date. This Resolution shall take effect immediately.
P93
CERTIFICATE
The undersigned Clerk of the Board of Supervisors of the County of Pittsylvania, Virginia, does
hereby certify that the foregoing constitutes a true and correct extract from the minutes of a
meeting of the Board held on February 21, 2012, and of the whole thereof so far as applicable to the
matters referred to in such extract. 1 hereby further certify that such meeting was a regularly
scheduled meeting and that, during the consideration of the foregoing Resolution, a quorum was
present. The vote of the members of the Board upon the foregoing Resolution was as follows:
Member
Tim R. Barber
James Snead
Jerry A. Hagerman
Coy E. Harville
Marshall A. Ecker
Jessie L. Barksdale
Brenda H. Bowman
PresenUAbsent Vote
WITNESS MI' HAND and the seal of the County of Pittsylvania, Virginia, this day
of February, 2012.
Clerk, Board of Supervisors of the County of
Pittsylvania, Virginia
zzs~w.oooozs
ziszsss~i
2-
P94
MANAGEMENT CONTRACT
This Agreement is made as of the day of February, 2012, between Pittsylvania
County, Virginia (the "County") and the Pittsylvania County Fire & Rescue Association (the
"Volunteer Fire Department Association").
The County provides funds to the Volunteer Fire Department Association, anot-for-profit
association that consists of 21 volunteer fire departments, 12 rescue squads and one specialized
life saving and search and rescue crew (the "VFDA Members"), pursuant to a "Volunteer Fire
Departments and Rescue Squads Reimbursement Policy -Guidelines and Procedures for
Volunteer Fire Departments and Rescue Squads" (the "Reimbursement Policy").
The County is currently in the process of purchasing and installing throughout the County
a new emergency 911 system, including communication towers, radios and other necessary
equipment (collectively, the "E-911 System"). As a part of the implementation of the E-91 I
System, the County is providing to the VFDA Members certain of the radios and other
equipment for use by such VFDA Members in emergency response and management (the
"VFDA Equipment").
This Agreement is intended to set forth the terms pursuant to which the VFDA
Equipment will be used by the VFDA Members.
NOW, THEREFORE, in consideration of good and valuable consideration, the receipt of
which is hereby acknowledged, the County and the Volunteer Fire Department Association
hereby represent, warrant and agree as follows:
1. Management and Provisions of VFDA Equipment. The VFDA Members agree to
assist the County in the management and operation of the E-911 System within their respective
jurisdictional areas in the County. The County shall furnish to certain of the VFDA Members
such items of VFDA Equipment as the County shall deem appropriate, in its sole and absolute
discretion, for the proper functioning of the E-911 System in the County. Title to the VFDA
Equipment shall remain in the County at all times, and the VFDA Members shall have no right,
title or interest therein. The VFDA Equipment is being provided free of charge to the VFDA
Members by the County. The VFDA Members receiving the VFDA Equipment will receive no
compensation for their use of the same or for the management of the E-911 System on behalf of
the County within their respective areas of jurisdiction and responsibility. The County will
continue to pay for the "faa line" provided by the County for E-911 dispatch as set forth in the
Reimbursement Policy.
2. Use and Maintenance of VFDA Equipment. The VFDA Members shall use the
VFDA Equipment in the performance of their firefighting, rescue and other responsibilities in the
management of the County's E-911 System and for no other purpose. The VEDA Members shall
operate the VFDA Equipment in the manner in which it is intended to be used and shall maintain
the same in good repair and operating condition. A VFDA Member shall report to the County
any VFDA Equipment that is not functioning properly. The VFDA Members shall comply with
all applicable federal, state and local laws, rules and regulations in their use of the VFDA
Egmpment.
3. Term of Use. This Agreement shall be in full force and effect for a period of
three years from the date hereof, subject to automatic renewal for successive one-year terms,
unless the County gives thirty (30) days written notice to the Volunteer Fire Department
Association prior to the automatic renewal date that it does not want to renew this Agreement. In
any event, the County and the Volunteer Fire Deparhncnt Association may terminate this
Agreement upon ninety (90) days written notice.
P95
4. Actions Upon Exercise of Security Interest or Termination of Agreement. (a)
The Volunteer Fire Department Association hereby acknowledges that a security interest has
been granted in the VFDA Equipment by the County to the lender that supplied the funds for the
purchase thereof and that such lender can, in the event of a failure by the County to make
payments to the lender for the same, exercise its rights with respect to the VFDA Equipment by
taking possession thereof or pursuing other actions under the lending documents.
(b) Upon the termination of this Agreement pursuant to Section 3 hereof, the
VFDA Members shall return the VFDA Equipment to the County within fifreen (15) days.
5. Representations. Each party represents and warrants that it has full right, power
and authority to enter into this Agreement and that the making of the Agreement and the
performance hereof will not violate any laws, resolutions or other agreements pursuant to which
such party is bound.
6. Right of Entrv. The County reserves the right during the term of this Agreement
to enter, at any reasonable time, the property upon which the VFDA Equipment is being used in
order to inspect the same.
7. Notices. Any notices to be given hereunder shall be given in writing and shall be
mailed, faxed or emailed to the respective addresses of the County and Volunteer Fire
Department Association below:
County
Pittsylvania County
Z1 North Main Street
Chatham, Virginia 24531
Facsimile: (434) 432-7714
Email: dan.sleeper@pittgov.org
Pittsylvania County Fire & Rescue Association
21 North Main Street
Chatham, Virginia 24531
Facsimile: (434)
8. Governing Law. This Agreement shall be governed in all respects by the laws of
the Commonwealth of Virginia, exclusive of its conflicts of law provisions.
9. Assignment of Agreement. The Volunteer Fire Department Association may not
assign, transfer, convey or otherwise dispose of any or all its rights, title or interests in this
Agreement, without the prior written consent of the County.
10. Counterparts. This Agreement maybe executed in one or more counterparts, each
of which will be regarded as an original and all of which will constitute one and the same
document.
11. Amendments. This Agreement may be amended only in writing signed by the
parties hereto.
12. Entire Agreement. This Agreement is the entire agreement between the parties
with respect to the use of the VFDA Equipment in the management of the E-911 System.
Nothing herein shall be construed as amending the Reimbursement Policy.
-~-
P96
l3. No Joint Venture. Nothing in this Agreement is intended, or shall be deemed, to
constitute a joint venture, a partnership or an agency between the Volunteer Fire Department
Association and the County. The Volunteer Fire Department Association and the County are not
related parties, and the Volunteer Fire Department Association has no ability to limit the
County's exercise of its rights hereunder. There are no members of the Board of Supervisors of
the County who serve as officers of the Volunteer Fire Department Association or on its Board
of Directors.
2131472c2
PITTSYLVANIA COUNTY, VIRGINIA
By:
Its:
PITTSYLVANIA COUNTY FIRE & RESCUE
ASSOCIATION
By:
Its:
-3-
P97
PITTSYLVANIA COUNTY
Board of Supervisors
EXECUTIVE SUMMARY
AGENDA TITLE:
Bid Award -Pittsylvania County Landfill Facility,
Permit No. 571: Phase II Cell B Construction
AGENDA DATE:
02-21-2012
[TEM NUMBER:
12
SUBJECT/PROPOSAL/REOUEST:
Award Contract
STAFF CONTACT(S):
Mr. Sleeper; Mr. Hawker
ACTION:
Yes
CONSENT AGENDA:
ACTION:
ATTACHMENTS:
Ycs
INFORMATION:
INFORMATION:
BACKGROUND:
DISCUSSION:
The County has solicited sealed bids for the construction of a ] 0-acre cell at the Pittsylvania County Landfill
Facility under Permit No. 571; Phase II Cell B construction. The County received 6 bids with the lowest
responsible responsive bid being from Haymes Brothers, Inc. in the amount of $1,925,708.30. (see attached)
Staff recommends the Board of Supervisors award the contract for Phase II Cell B construction at the
Pittsylvania County Landfill to Haymes Brothers, Inc. as the lowest responsible responsive bidder in the
amount of $1,925,708.30, and authorize the County Administrator to execute all necessary documentation.
P98
~ Dewberry
Dewberry & Davis, Inc.
551 Piney Forest Road
Danville, VA 245403353
434.797.4497
434.797.4341 fax
www.dewberry.mm
February 8, 2012
Mr. Otis S. Hawker
Assistant County Administrator
Pittsylvania County
P.O. Box 426
Chatham, Virginia 24531
RE: Pittsylvania County Landfill Facility, Permit No. 571
Phase II Cell B Construction
Dear Mr. Hawker:
Pittsylvania County received bids for the referenced project on February 7, 2012 at Z:00 p. m. The lowest bid
was submitted by Haymes Brothers, Inc. with a bid of $1,925,708.30. Attached is the summary of all bids.
We have verified the correctness of the bids received and verified proper contractor licensing; thereby,
determining Haymes Brothers, Inc. as being the lowest responsible responsive bidder.
Based upon the above investigation, Pittsylvania County may proceed with award of the Phase II Cell B
construction project to Haymes Brothers, Inc.
If you need any further information or have any questions please do not hesitate to contact me.
Sincerely,
Dewberry &jj~~Davis, Inc.
/ S.
Shawn R. Harden, P.E.
Project Manager
SRH/srh/chn
Enclosures
P:\50042236\ADM\CDRRESPONDENCE\LETTER$\2012.02.08 BID OPENING.DOC
P99
0 0 0 0 o m
m o 0 0 0 '.
ao ao ri m ti ai
o ~ v ~n ~ a
Y n O lD Q~ 00 M
O V/ 01 iD I~ rl ut
H N W lp M rl N
01 Ot O M V ttt
N N N N N N
V? N VT VT N N
0 0 0 0 0 0
m m o 0 0 0
~ O rl .~-i M V O
1+ V .-1 O ~O N lD
~ I~ n iD o0 W Ol
6 V r-i N L!1 Ot n
m m N N N N
V? V} V/ N V/ VY
0 0 0 0 0 0
0 0 0 0 0 0
~ o 0 0 0 0 0
r o io 0 0 0 0
~ a .~+ a ~ ao 0
a ~ v ~ n ni o
ao 0o ao m m o0
N N V} N V} VT
0 0 0 0 0 0
0 0 0 0 0 0
C f0 V1 O O Vt O O
O
' i+ O o0 C N O O
i. ~ N O i0 Ot O vt
~ d I~ 01 T O N N
~ N N N N N N
d N N N N N N
~" 0 0 0 0 0 Ot
~ O 1~ O O O ti
m rt l0 O /i n Q~
a
!C M 0 0 Vt N o0
u a s w m °i `
° m
-~ N
N N e1 N N N
y
N in .n .n .n .n .n
10
a O N V tD N O
p o io m ui m m
w Z ~ m o .~ m n
~ o m ~o a N n
C in 0 0 0 0 0
J C r-I e-I In II1 ll"1 V1
V 0 0 0 0 0 0
~. n n ~ n ~ n
~ J N N N N N N
Y
_
C
Y
Q C
V o
.
m
~ E
~ o
~ u
> °°
C
VN
M 1
a a
c
_
O
c f0
V
O
« '~
~ C
O .~
O.
O ~
V ~
~ ~
u C ~
C ~
J N U
O
' ~ J
N C
O t0 ~ C
N O
L a ~ a c ."
m U ~' U u o'
v ~ O c ~ ~
E > m Y m E v
m
m
z m
2 ~ ~ v, vsi ~
P 100
Ivtr. Otis S. Hawker
February 7, 2012
2
Verification that all activities performed by the contractor were
performed as outlined in the specifications and acceptable construction
procedures.
Provide a CQA Certification Report that the new cell was constructed
in accordance with the site specific Construction Quality Assurance
Plan. The report will be submitted to the Department of Environmental
Quality for their review and approval. DAA will follow up with the
review and respond to comments from DEQ.
2.0 DELIVERABLES
Draper Aden Associates will perform field services, collect samples of the on-site
soils, conduct laboratory testing and prepare a final certification report presenting
our field observations and results of our laboratory testing. These deliverables
and other instruments of service are prepared and made available for the sole use
of Pittsylvania County or owner approved.
3.0 ASSUMPTIONS
The Scope of Services presented in Section 1.0 is based upon the following
assumptions and conditions:
Field QA/QC services will be based on a 50-hour work week during
earthwork and a 60-hour work week during geosynthetic installation.
Length ofproject duration was estimated at 20 weeks.
Progress meetings are assumed to be held every two weeks and one
substantial completion and final completion field review.
4.0 LIMITATION OF RESPONSIBILITY
4.1 Limitations of the Data
Draper Aden Associates shall not be held responsible for any en~ors or
omissions contained in information provided by other parties.
4.2 Usage
Reports, recommendations, and other materials resulting from Draper
Aden Associates' efforts are intended solely for the purposes of this
Agreement.
U:\GEOiEC}ilProposals\2012 Proposals\Pittsylvania LF~P2L - 12 021 G-Pittsylvania Ph 2 Cell 13-LTW.doc
P103
Mr. Otis S. Hawker
February 7, 2012
3
Pittsylvania County shall recognize that site conditions are subject to
change with time as a result of natural processes and/or human activities.
5.0 FEES
The total fee for the QA/QC Services noted in our scope of services will be billed
on atime-and-materials fee in the amount of $99,500. The County will not be
invoiced for time not expended or material not utilized This fee will not be
exceeded without written au[horizaGon from Pittsylvania County. As noted in our
assumptions this fee is based on a construction duration of 20 weeks; however we
feel that the project duration will be less. Our fee estimate breakdown is attached.
On behalf of Draper Aden Associates, thank you for giving us the opportunity to
provide our proposal for engineering services. If this proposal meets your approval,
please sign one (1) copy of the Authorization to Proceed below and return it to us. Please
keep the other copy of the proposal for your records. We look forwazd to working with
you on this project. Please do not hesitate to contact us if you have any questions or
require any additional information,
Sincerely,
DRAPER ADEN AS IATES
~j
dray T. Weiford
CQA Project En ' e r
Kenneth M. Piazza, P.E.
Vice President
1 hereby authorize Draper Aden Associates to proceed with the work for the fees as described above.
(Name) (Title)
(Signature)
(Date)
U:\GEOTICH\Proposals\2012 Proposa151Pittsylvania LF\PRL - 12 0216- Pittsylvenia Ph 2 Cell B-LTW.doc
P104
2nfzo12
CQA Budget Summate
Plttsylvania County Landfill, Ph 2 Cell 8 Construction
by; LTW
zn/2o12
v
,` ~ llrapen Aden Associates
OLmkalrory • fllolrmnnrl, VIrxLJu
Workltem Quantity UnJts Rate Total
Item 1• Earthwork
- Subarade. 180.000 cv Cut. < 5,000 CY FIIII
1. Preconstruction Laboratory Testing (1110,OOOcy)
Standard Proctors 2 each $ 125.00 $ 250.00
Classi6calion(ARerberg, PaAkla aiza, Water Conten0 2 each $ 120.00 $ 240.00
Subtotal $ 490.00
3. Construction observation, testing, and documentation
Field Technician III (per week) 50 hours $ 55.00 $ 2,750.00
PerdieMMileage 5 each $ 145.00 $ 725.00
Subtotal per Week $ 3,475.00
Assumed Duration 6 weeks $ 3,475.00 $ 20,650.00
Total Item 1: $ 21,340.00
Item 2-Foundation Laver TesOna (+/-15,OOOcy)
1. Preconstruction Testing
a. Borrow Source Characterization (Lab Testing)
Soil ClasslHcallon (1f10,000cy) 2
Standard Prodors(1l10,OOOcy) 2
b. Observation and Documentation
Soil Technician per week 50
PerdieMMileage 5
Subtotal per Week
Assumed Duration 4
each $ 120.00 $ 240.00
each $ 125.00 $ 250.00
Sub total $ 490.00
hours $ 55.00 $ 2,750.00
each $ 145.00 $ 725.00
$ 3,475.00
weeks $ 3,146.00 $ 13,900.00
Total Item 2: $ 14,390.00
Item 3-Geosvnlhellc Testina +-!400,000 SF
1. Conformance Lab Testing (Mot)
HDPE
Density 2 each $ 25.00 $ 50.00
Carbon Black Content 2 each $ 35,00 $ 70.00
Carbon Black Dispersion 2 each $ 40.00 $ 60.00
Thickness 2 each $ 20.00 $ 40.00
Puncture Resistance 2 each $ 45.00 $ 90.00
Tear Resistance 2 each $ 50.00 $ 100.00
Aspority 2 each $ 30.00 $ 60.00
Tensile Properties 2 each S 55.00 $ 110.00
In-Plan) Sampling 2 each $ 65.00 $ 130.00
Sub total $ 730.00
GCL
Tensile Strength 2 each $ 75.00 $ 150.00
Permeability 2 each $ 225.00 $ 450,00
In-Plant Sampling 2 each $ 70.00 $ 140.00
Sub total $ 740.00
PRL - 12 0207- Plttsylvania Ph 2 Cell B- LTW
Page 1
P105
znnolz
CQA Budget Summary
Piltsylvania Couniy Landfill, Ph 2 Cell B Construction
by: LTW
2/7/2012
2. Construction observation, testing, and documentation
a. Lab Testing
Destructive Tasting 45
b. Observation and Documentation
Field Technician III (per week) 60
Perdiem/Mileage 7
Suhtotal per Week
Assumed Duration 4
ca
`'~" 1)rnper Aden AssOCiates
~7 um~weu,K • ~a,•em~nu. n~am„
each $ 25.00 $ 1,125.00
Subtotal $ 1,125.00
hours $ 55.00 $ 3,300.00
each $ 145.00 $ 1,015,00
$ 4,315.00
weeks $ 4,315.00 $ 17,280.00
Total Item 3: $ 19,Bb6.00
Item 4- Leachate Collec0on Laver Testinu/Protective Cover
1. Lab Testing (#78 or 8 Stone, 40,000 tons)
a. Preconstructlon Aggregate Lab Testing
Grain Size Analysis (1/type) 2 each $ 45.00 $ 90.00
Penneabllity(1llype) 2 each $ 185.00 $ 330.00
Calcium Carbonate(1llype) 2 each $ 275.00 $ 550.00
Soil Classifications for sbpe 2 each $ 125.00 $ 250.00
Subtotal $ 1,220.00
2. Constructton observation, testing, and docu mentation
a. Observation and Documentation
Field Technician III (per week) 50 hours $ 55.00 $ 2,750.00
PerdlemlMileage 5 each $ 145.00 $ 725.00
Subtotal per Week $ 3,475.00
Assumed Duration 6 weeks $ 3,475.00 $ 20,650.00
Total Item 4: $ 22,070.00
Item 5- Celttt(catlon Repo
-Preoare CAA reports, DEQ walk-lhrouah, comments and aoproval
Project Engineers 24 hours $ 125.00 $ 3,000.00
Program Manager II 2 hours $ 165.00 $ 330.00
Field Technician III 16 hours $ 55.00 $ 680.00
Subtotal $ 4,210.00
Total Item 5: $ 4,210.00
Item 6• Prolact Manaaement
-OVersSghUCaordinagon of field personnel, meedng attendance, prepare reports
records management and coordination.
Project Engineer I 80 hours $ 125.00 $ 10,000.00
Project Administrator 20 hours $ 65.00 $ 1,300.00
Program Manager II 20 hours $ 165.00 $ 3,300.00
Subtotal $ 14,600.00
Total Item 6: $ 14,600.00
Item 7-Miscellaneous Cost
PRL - 12 0207• Piltsylvania Ph 2 Cell B-LTW
P106
Page 2
zmzot2
CQA budget Summary
Pitlsylvania County Landfill, Ph 2 Cell B Construction
by: LTW
2p2072
Shipping (Reports, Correspondence, Geosynthetics)
Protect Supplies
Reproduction
llrnper Aden Associates
nwrxa .~,y • nin,~„~nn, wremm
it~..,,M. ti..., r • u„a~...,...,i s..a..
$ 1,000.00
$ soo.oo
$ 800.00
Subtotal $ 2,700.00
Total Itom 7: $ 2,700.00
Grand Total: $ 99,165.00
PRL - 72 0207- Pitlsylvania Ph 2 Cell B-LTW
P107
Page 3
STANDARD THRMS AND CONDITIONS
The Clieo[ and Drnpu Aden Associates (DM) agree Ihat the following
provisions shall be inco[porutW info Ihis agreement
A. SERVICES OF ENGINEER
1. The standard of care far ell proRSSional engineering end relalN
sevices perforscd or finnished by DAA under this Agreemet will
be the care and stlll aNinuily used by members of Engineu's
profession practicing under similar cimmnslanca al the same time
and in the same locality. DM makes no warranlio, express or
implied, undo this Agramcn[ in conncuimr with DAA's services.
2, par specific projeu rctluirements, mfuence Scopes of Services
atmchW.
R. CLIENT'S RESPON518ILPLI&S
I. Provide DM with all criluie and Full information ns to the Client's
rcquiromenls for the Oojcct.
2. Famish to DAA ell available Information pertinent to the project
upon which DM can explicitly rely.
3. Provide written approvals o(work compluW.
4, Designate project represenmtive capable of making binding
decisions.
5. Pny nil permitting fees.
6. Clearly idrntify tale of the Client during bidding and umstmedon
phases.
G TERMS OFPAYMF.MP
1. Fos and :ill shat chazges will be billed at Inst monthly es We work
progresses, and the net amount shall be due upon raWpL
2. A Ime payment FINANCE CHARGE rvill 6e computed al the
periodic talc of ( 1/2% per month, which is an ANNUAL
PHRCENTAGE RATE of l6%, and will be applied to any unpaid
balance commencing 30 days attu the daze of the original invoice.
Client agrees to pay such finnnee charges.
The client shall roinsbursc DM fw all expenses necessary fw
performing the professional services outlined within the proposal,
plus fifteen percent (15%). Such uxpensa would includq but am rest
IimilW to, subdivision fees, asseasmem fees, and fecv for
govemmcnlal checking and inspeUion, soils engineering, soils
luting, aerial topography, pumits, bond premiums, line company
charges, blucpdnts end reproduction, travel expenses, routs and
lodging, long distance phanc calls, photographic service,
shipping/couriu expenses, uUa insurance coverage speci6eWly
requested by the Client, suhcontmctar services, and ag athu charge
not specifically coverW by the terms of this agreement.
4. In fhe event all or any portion of the work prepared or partially
prepared by DM is suspended, abandon W, or terminated, the client
shall pay DAA fw the work performed on an hourly basis w percent
complete (if lump sum), trot to excced any maximum canmd
amount spuifiW htrdn.
5. In the even( of any liligulion, cliurt ag¢a to pay to DM interest ws
ell pest due balance 91 the rote of I B potent pu annum.
1n the event that the plans, specifications, and/or Reld work
covered by [his contract arc mvinvW and subject to epprovW by
vadous governmental agencies: end, in the event that. due to
change of policy and/or unwritten policies and/or design changes
requested by snid govemmentel agencies aticr the date of this
zgreemenl, additional omce of field work is requimd, the szid
addi[ionat work shall be paid fo! by client as extra work.
1n the event the client fails ro pay DM pramplly or within thirty (30)
days after invoices me rendered, Then thou agrees that DAA shall
have the right to casxider said default a [oW breach of the
Agmement and the duties of DAA undo this Agrcunenl teminated.
1o snch evrnt, Client shall thus promptly pay DAA for WI of the fees,
charges and services performed by DM on ms ugreW howdy basis.
Also, in such even6 Client agrees to indemnify and hold hamrtas
DAA from and against aR claims, damages, losses and expenses,
direst and indirect, w consequential damage, including but not
limited to tea and charges of nttomeys and court and erbibntion
outs, prising out of w mulling from the pcrfotmartce oP the work by
DAA, or claims against DAA related to work stoppage.
B. DAA has the right to withhold from the Client auy work prepared
uuder this Agreement until all delinquent invoices are paid in toll.
9. !n the event of u dispnled invoice, only that portion so dispmed may
be withheld from payment.
D. TIME OP COMPLETION
1. DM's service and compensation wades this Agreement have been
agreed to In antidpa[ion of the oMcrly and cominuous progress of
the Project tluough completion.
E. USE OFDOCi)hdHNTS (Herd Copies end Elutranic Transmittals)
1. All documaus for Ihis project are instruments of service and shalt
remain the property of DM (iuCluding the right of renu at the
discretion of the Hngineu) whethu w rtes the project is completed
and except whew by law w prccWenl there davmrnts become
public property
Any reuse or modification of any documents (whether haN copies or
electtonic lmnsmitW s) prepared by DM without written verification
or adaptation by DM will be et the sole risk of the individual or
entity utilivng said documents and such use is without the
euNmlwtion of DAA DM shall have no legal liability resulting
(mn any and ail Claims, damages, losses, and expenses, inchrding
attonsey's fees arising wrt of the unnuthosiad rcnse w modification
of Ihae documents. Client shell indemnify DM from any claims
arising owl of uneuthotivcd use or modification of the documents
svhethu hani copy w electronic.
3. Copies of domunents Ihat may be relied on by Client are limited to
the printed copies (also known az hanl copie) tbet are sdgned or
sudcd by DAA Eluuonie Iraamhlals of any type am fm'
convenience of the Client. My conclusion or informadon obtained
ar dcrivW from such elmlronic tranwrittals will be al [he Clients
sole risk. if there is a discrepancy bdwcen fhe Wecimnic Iranamiltals
and tlse hard copies, tlse hard copies 6ovem
4. When transfering documents in electronic form W, DM males no
reprucrlmtions es to compatibility, usabihty, or rendubility of
documents resulting from the use of soRss:rre appliulimn package,
opuating sysluns, or computer hardware differing Crom thou uxW
by DAA. Tmnsfering electronic documents deer not uansfu any
licasse for use of the underlying software.
CNT- OS 0315 -DAA Standard Terms & Conditions, Aev 02-03
Page 1 of 3
P108
5. DM makes no reprxsenlariws as to the durability of the eiecrmaic
information or the medium in or on which it was transferred. UAA
shall not be ruponsibk to maintain documents in electronic formal
afro the project is terminated whether completed or nos.
R. OPINION OF COST
DM's opinions of probable cost provided under Ihis Agrarnent are
made on the basis of DM's experience and qualifications end
reprrscnl DAA's but judgemens as en experienecd and qualified
profusional generally familiar with the industry. Hmvovey since
DM Iws no conuo( over the cost of Uboq materials, cquipncnl or
servieu famished by others, or over the Contredor's methods of
determining price or over emnpetifive bidding or market condifioru,
DM cannot and doe not guaranra drat proposals, bids or shoal
casts will no[ vary from Moir opinions and the Chant agree m hold
DAA hurmlus rdadve so deviations between the opinion of cost and
actual, final casts.
r;. DCSIGN WII'EIOfTf CONSTRUCTION PHASE SERVICES
Climl ecknmvledgu Ihel iI is customary for DAA, which is
responslb(e for the preparation and famishing of Dmwingx and
$peclRGlllOnx and Other ConsINC110n-related docrrmmt$, m be
employed m provide professional servieu dunng tht Bidding and
Consirvetibn Phase of the project Such services ere provided (a) m
interpret and clarify (he daumemalion so famished und to modify
IhC same as circomstancu mvcakd dudng bidding sad conswhion
nray dictate, (b) in cunnedion wish acceptena of substitute or
or-equal items of mmedak and equipment proposed by bidders and
COIItraGOr(S), (c) iu conncctim with approval of shop drawings and
sample submittals, and (d) as a reuh of and in rupwrse to DAA's
chafing in advance ofpcrformance of affected work inconsistenciu
w irtcgularisiu in such docummmlion.
Client agrees [hat if DM is noI employed ro provide such
profusional servieu during the Bidding Of the work is par out for
bids) and the Construction Phase of the Projch, DM will not be
ruponsible 3or, end Client shall indemnify and hold DM Imrmlus
from, aB claims, damage, luau and upcnsu including attome~s
fees arising out of, m'ruarlting from, any interprelndon, clarification,
substitution aacplancc, shop drawing or sample approval or
nrodifiution of such daumentation issued or curried out by Gieut
N ofhm,
1. Nothing consained in Ihis pamgmph shall 6e construed (o micasx
Engineer from its mspmsibilitiu for perfortnancc in acconlance with
she profusional standards that DM has ondhtnken or asmmcd
under this Agreement.
H. SUBSURFACE CONDITIONS AND DESIGN
The actual conditions and chametedsliu encountered in soils.
groundwater, bedrock, weathered Nek, colluvium, kmst tmahr, nail
othn' subsurface invutigations may vary significantly behvem
suausivt tut points nail sample intervals, and at locations other
Ibvs where observations, explomtionb, and investigations have ban
made. Bttuusc of the inhemnl uncertaintiu in subsurface
evaluations, changed or unnnlicipmed subsurface conditions rosy
occur that Could affect total q'ojecl costs und / or execution.
Additional activitiu and upensu related to changed subsurface
conditions aro not the ruponsibility of the eNGRJEP.R unless They
are a runh of the F.NGB~IEER'S fullurt (o exorcise llsc standard of
care sal forth herein. Deign shag rellecl those subsnrtace conditions
reasonably anticipated fiom data obtained from the aibsurfacc
invudgations performed for this pmjecs.
CNT - OS 031 S - DAA Standard Terms & Conditions, Rev 02-03
L ALLOCATION OR RISHS
i. DAA's liability, hnxundeq shall be limited to amounts due DAA for
servieu actually mndcrcd, or rtimbnrsable ezpensu actually
incurred. In case of lermina(ion, DAA will not be liable for lost
profits or other direct or Indira[ damages.
J. DISPUTE RESOLUTION
I. The Client and llM agree to negotiate all dispnta behvan them in
good faith for a ptdod of 30 days from [he dote oC written nolitt of a
potential dispute prior m exemising theirrights mrdcr law.
2. Should litigation be necusary to enforce any lens orpiovision of this
agreement, or to collect any portion of the amount payable under this
agrament, thrn all litigation and collection expenses, witness feu
sad court costs, and etmme~s feu shall be paid by the Gienf.
3. In the event that Client institute legal action against DM hecause of
an alleged failure to perform, mar, omivion, or negligrnce, and if
such soil is not successfully pros<cuteA, or if it is dismissed, or if
veNict is rendered in favor of DAA, Girnl agrees to pay DM any
and all costs of defense, including auomeys feu, expert wimusu'
feu, and coon cos•IS and any end all hher expense of defense which
may be needed, immcdiatcty following dismissal of the case or
immediately upon verdict being rendered in behalf of DAA
4. IF court of compe[mtjudsdiction Lnds in favor of the clirnl, DM's
liability shall in no use exceed the compensation paid or payable to
DAA under this mntma.
5. !n the event of litigation on this agreement, the interpretation then;of,
and aB dispute or controversiu arising hcrtunder shall be governed
by the Jaws of the Commonsvicellh of Virginia.
E. SUCCESSORS, ASSIGNS,BENEFICIAI2IFS
1. The Girnt and DM each is hereby Imund and the partners,
succusors, ezeaeors, adminixtmlors, and legal represenmtivu of the
Gimt and DAA are hereby hound to the afhu party to shin
Agreement nod to the partners, wcasson, executors, adminislmtors
and legal rtpresentativu (and said azsigns of such othu party), in
respect of all covenants, agmcmcnls and obligations of this
Aglammt
2. Neither the CBent nor DAA shall assign his inlerut in Ihis agreement
without the wdlten emrsrnt ofihc other.
3. No conditions or repraenlabons, altering, detracting from, nor
adding to the terms hereof shalt be valid unless printed or wnUCn
hermn or evidenced in wilting 6y either party to this agrttment and
accepted in writing by the other.
4. Service provided within this agreement are for the exclusive use of
the Client.
5. There are no undersmndings or ngrttments ucept as herein uprasly
stated.
6. The Terms nail provisions of (his agrcenumt shall not 6e conswed to
alter, waive, or effect any lien rights, which DAA may have far the
performance of services under this agramenl.
7. One or mdse waiver: of any tmn, cmrdision or covenant by DAA
shall not be construed by the Client as a waiver of a subsequent
breach of the same or any other tarot, emrdition or covenant
Page 2 of 3
P109
8. In the event any provisions of dris agreement shall tx hdd to be
invalid end unustwceahlo, the olhu provisions of This Agreement
shall be valid and binding on the pmaies hereAO.
L. OTHRR CONDTTIONS
1. In the event that aay slaking is dunoycd by an net of God w panic
aher Than DAA, the cost of resmking shell be paid for by client ac
extra work
2. .DAA makes no wamnly to the Ude to property surveyed uw does
DAA assume any liability for errors or for information trot provided
DAA, which would normally be disclosed in a title search by an
altomcy.
3. DAA daex not guarantee the completion or gafllily of pcrtonnnnce of
connector the completion or quality of perfwmancu of contracts by
[he corvsnoctlon connector or connarAOrs, or other Third panics, nor
Is he msppesible for their acts, omissions, w constmction methods.
4. 'Ibis Agrament is valid for 90 days from the dolt of the Agramen[.
Should DAA choasro to cancel the Agreemun, it is DAAk right to do
w prior to the expiration date. Tlw Agreement signed by DAA and
the Clirnt in Conjunction wish any attachments will serve as the
entim Ap,rcement bepveen the parties. if verbal euthorivndou to
begin swdr is given DAA, then ell the conditions and tenet of the
Agnxment am constrvrA as ececptablc to the Client whether or nor
the Agreement is signed and rctumed by the Clicnl to DAA.
CNT - p5 031 S -DAA Standard Terms & Conditions, Rev 02-03
Page 3 of 3
P110
PITTSYLVANIA COUNTY
Board of Supervisors
EXECUTIVE SUMMARY
AGENDA TITLE:
Bid Award -Klopman Waterline Extension
AGENDA DATE:
02-21-2012
ITEM NUMBER:
14
SUBJECT/PROPOSAL/REOUEST:
Award Contract
STAFF CONTACT(S):
Mr. Sleeper; Mr. Hawker
ACTION:
Yes
CONSENT AGENllA:
ACTION:
ATTACHMENTS:
Yes
INFORMATION:
INFORMATION:
BACKGROUND:
DISCUSSION:
The County has solicited bids for the Klopman Waterline Extension. The County received 7 bids (see
attached), with the lowest responsible responsive bide from Crews Construction Company, in the amount of
$218,789.11.
RECOMMENDATION:
Staff recommends the Board of Supervisors award the contract for Hurt-Klopman Waterline Extension to
Crews Construciton Company as the lowest responsible responsive bidder in the amount of $218,789.11, and
authorize the County Administrator to execute all necessary documentation.
P111
ENGINEERING • LAND SURVEYING
February 9, 2012
Mr. Dan Sleeper
County Administrator
P.O. Box 426
Chatham, Virginia 24531
RE: Hurt -Klopman Waterline Extension
Dear Mr. Sleeper:
Afrer the advertised bid opening at the County office on February 8, 2012 at 2:00 pm, we have
completed bid tabulation. There were 7 bids received and all bids were checked for azithmetic errors
and none were found. The lowest responsible bid was from Crews Construction Co. in the amount of
$218,789.1 ]
We have conducted an investigation of and found their contractor license is current and have the
equipment and personnel to perform the project. We therefore recommend awazding a contract to
Crews Construction Co. for the Hurt -Klopman Waterline Extension.
Enclosed is the certified bid tabulation, an Agreement and a notice of Award. Upon the County's
acceptance of the bid, you should send 3 signed copies of the Notice of Award, and three unsigned
copies of the agreement for execution by the Contractor. Once you have received three signed
agreements, certificates of insurance, and performance bond, we will review the documents prior to the
County executing the agreement. A notice to proceed will then be prepared for work to start.
Should you have any questions, please let us know
Sincerely,
LE&D Professionals, PC
G Johnson, PLS
President
enc.
River Run Executive Offices, Suite B • 1 10 Exchange Street • Danville, Virginia 24541
Phone. 434-792 3680 Fax: 434-792 3685 • www landeng com
P112
PR®JECT: Hurt Klopman Water Line
BID DATE: Wednesday February 8 - 2:00 PM
BID RESULTS
BIDDERS Base Bid
1 1. Marshall Const. Co $ ZZlo
2/ ~ . ~(Q
3
2 2. Warrco, Inc $ ZS~ ~f 30 . UD
3 4. Haymes Brothers, Inc $ 3'ZD ~ Qidj o ~
4 Crews Construction Co., Inc. $ 'Zf g , ~~~ ~~
5 5. Campton & Nichols Inc $ ~Z32-
~(~. U U
~
6 6. Prillaman & Pace, Inc $ 'L21 ~ ~ j ~j , V U
7 7. Virginia Carolina Paving Co $ ~j2LF , ~ ~ ~ , d
Addendum
Received Bond
Received
~ ~
,/ /
//!f~~ ~
P113
~~°~:
.3
S
CP
//
Y
Z
PITTSYL,VANIA COUNTY
Board of Supervisors
EXECUTIVE SUMMARY
AGENDA TITLE:
Candlelight Service Request -Police Memorial
AGENDA DATE:
02-21-2012
ITEM NUMBER:
16
SUBJECT/PROPOSAL/REQUEST:
ACTION:
Yes
Service Request
STAFF CONTACT(S):
Mr. Sleeper
CONSENT AGENDA:
INFORMATION:
ACTION: INFORMATION:
ATTACHMENTS:
Yes
REVIEWED BY:
BACKGROUND:
National Police Week will be May l3- l9, 2012 and during this week thousands of Law enforcement officers
will be remembering their fallen Brothers and Sisters.
A request has been made by Ms. Gracie Ann Mays to allow her to organize a candlelight service in memory
of the 10'h anniversary of the death of Pittsylvania County Deputy Frankie Lynn Betterton, who lost his life in
the line duty on May 17, 2002, and to honor all other officers from Pittsylvania County that have lost their
lives in the line of duty as well. Plans are still underway, but the service will be held at the Fallen Officers
Memorial located behind the Moses Building the evening of Thursday, May 17, 2012. Ms. Mays is
requesting permission from the Board of Supervisors to use the Fallen Officers Memorial for the venue of
this candlelight service.
RECOMMENDATION:
Staff submits this to the Board of Supervisors for their review, consideration and approval.
P114
o~o~o
12351 MARTQJSVO.,LE HWY
DANVILLE, VA 24541 0855
434-250-7435
000oooooaooooaoaooo
Dan Sleeper
Pittsylvania County Admistrator
P O Box 426
Chatham, Va 24531
February 6, 2012
Dear Mr. Sleeper, and Member of the Board of Supervisors.
Looking back it is hard to believe it has almost been 10 years since Pittsylvania
County lost a true Hero. That man being the late Pittsylvania County Deputy
Frankie Lynn Betterton. Frankie was taken from us on May 17, 2002.
Coming up this year being the 10th anniversary of his death and also During that
week May 13-19, 2012 thousands of Law enforcements officers will be remem-
bering their fallen Brothers and Sister during National Police Week.
Friends and Family of Officer Betterton would like to honor and remember Frankie
with a Candle Light Vigil on the 17th of May at the Police Memorial in Chatham.
We would like to have the service as it is getting dark. At this time we are making
plans none are final yet.
We are just asking permission from you and the board to allow us the honor to have
the service at this location. We will honor all the other officers from Pittsylvania
County that have lost their lives in the line of duty as well.
Looking forward to hearing from you. If you have any questions I hope you will call
me.
G~'r/t-C~
~~ '
Gracie Mays.
P115
PITTSYLVANIA COUNTY
Board of Supervisors
EXECUTIVE SUMMARY
AGENDA DATE:
AGENDA TITLE: 2-21-12
Rescue Billing Appropriation-Requires a motion and ACTION:
a 10-day layover. Yes
SUBJECT/PROPOSAL/REOUEST: CONSENT AGENDA:
ACTION:
Rescue Billing Appropriation
ATTACHMENTS:
No
STAFF CONTACT(S):
ITEM NUMBER:
17
INFORMATION:
INFORMATION:
BACKGROUND:
DISCUSSION:
The County recently started receiving payments for rescue billing. These payments are currently being
credited to a newly established Rescue Billing Enterprise Fund. Med 3000 requires an administrative fee to
bill for this ambulance service at a rate of 5.9% of the amount received. In addition, the Finance Department
is required to submit documents to Med 3000 to account for the funds that the County receives. Therefore, a
total of $10,000 needs to be appropriated at this time to cover management fees and postage for the
remainder of this fiscal year.
RECOMMENDATION:
Staff recommends that the Board of Supervisors appropriate $10,000 to the Rescue Billing Enterprise Fund
for management fees and postage. REQUIRES A MOTION AND A 10-DAY LAYOVER.
ails
PITTSYLVANIA COiJNTY
Board of Supervisors
EXECUTIVE SUMMARY
AGENllA TITLE:
AGENDA llATE:
2-21-12
ITEM NUMBER:
18
Community Foundation-Fire Grant -This
appropriation requires a roll call vote
SUBJECT/PROPOSAL/REQUEST:
Appropriation of Grant Funds awarded for the
purchase of fire and rescue equipmcnt
STAFF CONTACT(S):
Sleeper, VanDerHyde, Mills
ACTION-
Yes
CONSENT AGENDA:
ACTION:
INFORMATION:
INFORMATION:
ATTACHMENTS:
No
REVIEWED BY:
BACKGROUND:
DISCUSSION:
Pittsylvania County was recently awarded a gran[ in the amount of $10,000 from the Community Foundation.
This grant is to be used to purchase equipment for Fire and Rescue. A check in the amount of $10,000 has
already been received and deposited with the Treausrer of Pittsylvania County from the Foundation.
RECOMMENDATION:
Staff recommends that $10,000 be appropriated to the Community Foundation-Fire Grant under a Capital
Outlay-Equipment line item (250-4-094209-8102). THIS APPROPRIATION REQUIRES A ROLL CALL
VOTE.
P117
PITTSYLVANIA COUNTY
Board of Supervisors
EXECUTIVE SUMMARY
AGENDA TITLE:
Ferry Road Waterline Project
AGENDA DATE:
02-21-2012
ITEM NUMBER:
19
SUBJECT/PROPOSAL/REO VEST:
Perry Road Waterline changes
STAFF CONTACT(S):
Mr. Sleeper
ACTION:
Yes
CONSENT AGENDA:
ACTION:
ATTACHMENTS:
No
INFORMATION:
INFORMATION:
BACKGROUND:
The Board of Supervisors approved a Ferry Road waterline project in the 2011/12 FY budget. This project was
approved at $332,800. Due to some engineering requirements and burdens with the City of Danville, the
Honorable Coy Harville will make a presentation to the Board of Supervisors concerning changes in the Ferry Road
waterline project.
DISCUSSION:
"Che Honorable Coy E. Harville, Westover District, wil l make a presentation to the Board of Supervisors conceming
necessary changes due to unsolvable engineering problems with the current Ferry Road project.
RECOMMENDATION:
Staff submits this to the Board of Supervisors for their review, consideration and approval.
P118
PITTSYLVANIA COUNTY
Board of Supervisors
EXECUTIVE SUMMARY
AGENDA TITLE:
Award Contract -Quality Assurance Quality Control
(QAQC) Services - Pittyslania County Landfill
Facility, Permit No. 571-Phase tI Cell li Construction
AGENDA DATE:
02-21-2012
ACTION:
Yes
ITEM NUMBER:
13
INFORMATION:
SUB.IECT/PROPOSA L/BEOUEST:
Award Contract
CONSENT AGENDA:
ACTION:
INFORMATION:
STAFF CONTACT(S):
Mr. S-eeper; Mr. Hawker
ATTACHMENTS:
Yes
BACKGROUND:
In the expansion of the Pittsylvania County Landfill, the Deparment of Environmental Quality (DEQ)
requires a third party to perform the Quality Assurance Quality Control (QAQC) services to insure the new
cell meets all Subtitle D regulations and requirements.
DISCUSSION:
County staff has, via the State Procurement Code, sent out Requests For Proposals (RFPs) and selected
Draper Aden Assoicates to perform the QAQC work for the Pittsylvania County Landfill expansion. Staff
has negotiated a contraoct for the Board's consideration and approval (see attached) in the amount of
$99,165.
RECOMMENDATION:
Staff recommends the Board of Supervisors approve the contract for QAQC services with Draper Aden
Associates in the amount of $99,165 and authorize the County Administrator to execute all necessary
documentation.
P101
~° Draper Aden Associates
Grrgirreerirrg Smvc7~ing Limirmnrrenlnl Seroicea
8090 Villa Perk Drive
Richmond, Virginia 23228
(804)264-2228 Fax (804) 264-8773
mvw.dan.com
February 7, 2012
Mr. Otis S. Hawker
Assistant County Administrator
Pittsylvania County
P.O. Box 426
Chatham, Virginia 24531
RE: Proposal for Quality Assurance/Quality Control Services
Pittsylvania County LF Phase 2 Cell B Construction
Proposal Number: R03350-P
Dear Mr. Hawker:
Thank you for providing Draper Aden Associates (DAA) the opportunity to
present this proposal for Quality Assurance/Control (QA/QC) services for the new cell
construction at the above noted site in Pittsylvania County, Virginia. It is our
understanding that this project will consist of construction monitoring and testing of an
approximately 9 acre new cell. Our proposal has been prepared in accordance with the
Construction Drawings and the Project Specifications dated January, 2011 prepared by
Dewberry & Davis of Danville, VA Presented below is our understanding of the work
and the associated costs.
1.0 SCOPE OF SERVICES
Our scope of services will include:
• Construction laboratory material testing for Structural Fill, Foundation
Layer, GCL, 60-mil HDPE geomembrane, and leachate
collection/protective cover.
• Field Observation and monitoring of Erosion and Sediment control
measures.
• Field Observation and monitoring of roadway and site utility
placement.
• Structural Fill and Foundation Layer Testing including genera] fill
testing and proofrolling of the subgrade layer.
• Field Observation and monitoring of the GCL, 60-mil HDPE
geomembrane deployment and seaming.
• Field Observation and monitoring of geotextile and double-sided
geocomposite deployment and seaming.
• Monitoring and testing of Leachate Collection Layer system including
piping and connections to existing system.
Blackx6wg, Vir'yriain CLnrlntresri((e, Pirginiti Hantplnn Roads, Virginia Riclnnoud, Virginia
P702
APPOINTMENTS
P119
PITTSYLVANIA COUNTY
Board of Supervisors
EXECUTIVF, SUMMARY
AGENDA TITLE:
Appointment Local Elected Officials (LEO)-
AGENDA DATE:
02-21-2012
ITEM NUMBER:
20
Appointment to LEO
STAFF CONTACT(S):
Mr. Sleeper
ACTION:
Yes
CONSENT AGENDA:
ACTION:
ATTACHMENTS:
No
REVIEWED BY:
INFORMATION:
INFORMATION:
BACKGROUND:
The Local Elected Officials (LEO) is the consortium in charge of delegating the directives under which the
Workforce Investment Act (WIA) operates for the Counties of Henry, Patrick and Pittsylvania, and the Cities of
Danville and Martinsville. This consortium is composed of the Chief Elected Officials from these localites.
The Honorable "Tim R. Barber, Chairman of Pittsylvania County, or his appointee, will need to be officially
appointed to this position. If the Chairman wishes to appoint someone in his place, the appointee is typically the
Vice-Chairman or Vice Mayor of the locality.
RECOMMENDATION:
Staff submits this to the Board of Supervisors for their review, consideration and approval.
P120
PITTSYLVANIA COUNTY
Board of Supervisors
EXECUTIVE SUMMARY
AGENDA TITLE:
Appointment Pittsylvania County Beautification
Committee- Westover District; Staunton River
District
SUBJECT/PROPOSAL/REOUEST:
Appointment to Planning Commission
AGENDA DATE:
02-21-2012
ACTION:
Yes
CONSENT AGENDA:
ACTION:
ITEM NUMBER:
21
INFORMATION:
STAFF CONTACT(S):
Mr. Sleeper
ATTACHMENTS:
No
REVIEWED BY:
INFORMATION:
BACKGROUND:
At the February 6, 2012 meeting of the Board of Supervisors, the Board approved forming the Pittsylvania County
Beautification Committee which would have 7 members, 1 representing each electoral district of Pittsylvania
County, who would be appointed by the respective Board member. The Chairman of the Board of Supervisors has
requested before any nominations for appointments are made to any committees, boards, agencies or commissions,
that the name of the proposed candidate to be nominated for an appointment to that board, agencies, committee or
commission be submitted to the Board of Supervisors prior to the board meeting.
1) The Honorable Coy Harville has nominated Grady Corrignn as the Westover District representative for the
Pittsylvania County Beautification Committee.
2) The Honorable Marshall Ecker has nominated Jnckie Forrest as the Staunton River District representative for the
Pittsylvania County Beautification Committee.
RECOMMENDATION:
Staff submits this to the Board of Supervisors for their review and consideration.
vi2i
PITTSYLVANIA COUNTY
Board of Supervisors
EXECUTIVE SUMMARY
AGENDA TITLE:
Appointment -Pittsylvania County Planning
Commission -Westover District
AGENDA DATE:
02-21-2012
ITEM NUMBER:
22
SUBJECT/PROPOSAL/REQUEST:
Appointment to Planning Commission
STAFF CONTACT(S):
Mr. Sleeper
ACTION:
Yes
CONSENT AGENDA:
ACTION:
ATTACHMENTS:
Yes
INFORMATION:
INFORMATION:
BACKGROUND:
Agencies, Boards and Commissions that operate under Pittsylvania County make nominations to the Board of
Supervisors for appointments representing each election district within the County. The Planning Commission
is a committee in which a representative from each district is appointed by the Board.
The Chairman of the Board of Supervisors has requested before any nominations for appointments are made to any
committees, boards, agencies or commissions, that the name be submitted to the Board of Supervisors prior to the
board meeting of the proposed candidate to be nominated for an appointment to that board, agencies, committee or
commission. The notification of this potential re-appointment of David Weatherford as Westover District
representative was on the agenda and in the board packet for the February 6, 2012 meeting.
Mr. Weatherford's current term will expire on March 23, 2012. "fhe new appointment term for that seat will be
from March 24, 2012 -March 23, 2016.
RECOMMENDATION:
Staff submits this to the Board of Supervisors for their review and consideration.
Fizz
PITTSYLVANIA COUNTY
Board of Supervisors
EXECUTIVE SUMMARY
AGENDA TITLE:
Appointment -Pittsylvania County Planning
Commission -Westover District
AGENDA DATE:
02-06-2012
ITEM NUMBER:
21
SUBJECT/PROPOSAL/REOUEST:
Appointment to Planning Commission
STAFF CONTACT(S):
Mr. Sleeper
ACTION:
Yes
CONSENT AGENDA:
ACTION:
ATTACHMENTS:
Yes
REVIEWED BY:
INFORMATION:
INFORMATION:
BACKGROUND:
Agencies, Boards and Commissions that operate under Pittsylvania County make nominations to the Boazd of
Supervisors for appointments representing each election district within the County. The Planning Commission
is a committee in which a representative from each district is appointed by the Board.
DISCUSSION:
The Chairman of the Board of Supervisors has requested before any nominations for appointments are made to any
committees, boards, agencies or commissions, that the name be submitted to the Board of Supervisors prior to the
board meeting of the proposed candidate to be nominated for an appointment to that board, agencies, committee or
commission. The current Planning Commission representative for the Westover District is David Weatherford,
whose term will expire on March 23, 2012. The new appointment term for that seat will be from Mazch 24, 2012 -
Mazch 23, 2016.
RECOMMENDATION:
Staff submits this to the Board of Supervisors for their review and consideration.
P123
REPORTS FROM
BOARD
MEMBERS
P124
REPORTS FROM
LEGAL COUNSEL
P125
REPORTS FROM
COUNTY
ADMINISTRATOR
P126
PI'I" ICSYI,VA1~iIP~ C®U1V'I'Y
VIRGINIA
~'CSYLVA
William D. Sleeper ;~ ~ \ Phone (434) 432-7710
County Administrator O ~ ` , ~
P.O. Box 426 .a - ~ 4~ C Fax (434) 432-7714
a / ~ < Grctna/Hurt (434) 656-6211
Chatham, Virginia 24531 ~ `~ ~ `N ti
dan.sleeper@pittgov.org J' ~' a '~ t' Bachelors HaB/WhitmeB (434)797-9550
Memorandum
To: Honorable Members of the Pittsylvania County dB~o/a`r/d~ of Supervisors
From: William D. Sleeper, County Administrator ~//"/~~/~'
Date: Thursday, February 16, 20 ] 2
Subject: Swedwood Rail Contract
At the regular meeting of the Pittsylvania County Board of Supervisors held on Monday,
February 6, 2012, the Board of Supervisors reviewed and approved the repayment schedule
recommended by Thelma Drake, Director of the Department of Rail and Public Transportation in
a letter dated January ]0, 20]2. It requires Pittsylvania County to pay $18,750 per month for 24
months for a total of $450,000 reimbursement in accordance with Agreement No. 76607-07 (See
Exhibit F). The Honorable Coy E. Harville requested input from the County Administrator's
office to the Board of Supervisors as to how come Swedwood was not responsible for this rail.
In accordance with that request, please see attached documentation concerning the Swedwood
Rail Access at Cane Creek Centre.
The total project is 4,800 linear feet; that is 2,000 feet from the main line to the property line of
Lot 7A, that is defined as the Swedwood site. Going from the property line to the building is an
additional 2,800 feet, totaling 4,800 feet. There is a variety of costs in the history of information
concerning Swedwood; the original rail started out at roughly $1.2 million and went up to an
estimate of $1.4 million. The actual total of the project is $1.9 million. There was a significant
amount of fill dirt required. There was a requirement to move a power line and raise it that was
not in the original cost. Attached hereto is Exhibit A, showing the actual grant proposals and the
costs up to $1.9 million. The actual final costs was right at $1.9 including all of the
encumbrances and expenditures in the close out. It was intended that Swedwood would develop
four million square feet of manufacturing at Cane Creek Centre. This would require three phases
of rail service. Phase I is currently constructed at the Cane Creek Centre. There is additional
proprietary information covering the next ] 0 years for both State incentives and County and City
incentives for the Swedwood project if it was completed in all four phases totaling four million
squaze feet of manufacturing and a one million square foot distribution center. This information
is still in "Closed Meeting."
The agreement that started the Swedwood Rail Project came in 2006 with a meeting in the Office
of the Virginia State Partnership. In the Conference Room were representatives from the City of
P128
Members of the Board of Supervisors
Swedwood Rail Contract
Page 2
February 16, 2012
Danville: Ron Bunch and Jerry Gwaltney. From Pittsylvania County were William D. Sleeper,
County Administrator and Carol Motley, Director of Pittsylvania County Economic
Development, Inc. In addition, there were representatives from the Virginia State Partnership,
representatives from the Office of the Governor of the Commonwealth of Virginia and
representatives from Swedwood North America. During that discussion, issues were pointed out
and identified for the proposed location of Swedwood in the Cane Creek Centre in Pittsylvania
County. It was requested by Swedwood that they have rail access to Phase I of their project and
it was of critical need at that point in time. Representatives of Swedwood and the Governor's
office went into closed session with the Governor to discuss the issue of the location of
Swedwood. Upon return to the meeting concerning the location, the Governor announced a
Community Development Block Grant in the amount of $700,000 would go to Pittsylvania
County to assist in the development of the required rail service to Swedwood's Phase I project.
This is how we began the requirements of providing the rail to Swedwood North America, LLC.
Exhibit B contains all of the correspondence related to the activities of the rail service provided
to the Swedwood project beginning in November 2006 and ending in January 2012. This
correspondence covers the requirements from the beginning of the proposed rail site to several
requests through two different City Managers and the County Administrator. In addition, you
will find a letter of support from Senator Bill Stanley supporting the County Administrator's
letter of Februazy 18, 2011 requesting an extension of 36 months. In addition from that time
forward, I was requesting a reduction in the total due to $375,000 which was not accepted by the
Virginia Department of Transportation.
Exhibit C is a letter from the Department of Housing and Community Development certifying
that their grant is closed; therefore, the County does not owe any of the $700,000 back on the
Community Development Block Grant.
Exhibit D is resolutions from the Board of Supervisors and from City Council that establishes the
authority to sign the contracts and the agreements necessary for the Swedwood Rail.
Exhibit E and Exhibit F are excerpts from the Memorandums of Agreement because the main
Memorandum of Agreement is an extension 60-page document; I have pulled the specific pages
that refer to the Swedwood Industrial Rail Project and Grant. Remember this project was
proposed to be a four phase project and three phases of it contain rail development. I
recommend that the Boazd refer to page mazked 17, the last pazagraph of Section 2.7, "Any
grants made under the Rail Industrial Access Program shall not be subject to repayment by
Swedwood, and shall be subject only to Swedwood's location of its operation at Cane Creek."
Exhibit F is a full copy of the Agreement for Industrial Access Rail Funds from the Virginia
Department of Rail and Public Transportation.
WDS/kp
Attachments
P129
Danville Pittsylvania Regional Industrial Facility Authority
Railroad Spur
Unexpended!
Funding Expendrtures Encumbered Unencumbered
Proposed Funding Sources
Rail Industrial Access Grant 900,000.00 80,235.00 153,265.00 666,500.00
CDBG' 700,000.00 700,000.00
Match-Up' 300,000.00 300,000.00
Totaf 1,900,000.00 80,235.00 153265.00 1,666,500.00
Railroad Budget
Brockway Line Reloption 168,800.00
While Construction Contract 1,236,410.00
Dewberry 8 Davis Engineering Contract 122,500.00
Contingency S Work Pertonned by Swedwood 372,230.00
Total Budget 1,900,000.00
Note:
' Funds are to be used forconsWclion only
EXHIBIT
ccA»
P130
--
i
w.
-,
.~
EXHIBIT
ccB»
JAN 1 9 zulz
CO1~M®NVV~'AI,T'I-I of VIIt~INIA
THELMA DRAKE
Dirzctor
January 10, 2012
William D. Sleeper
County Administrator
Pittsylvania County
P.O. Box 426
Chatham, Virginia 24531
Joe King
City Manager
City of Danville
P.O. Box 3300
Danville, VA 24543
DEPARTMENT OF RAIL AND PUBLIC TRANSPORTATION
600 EAST MAIN STREET, SUITE 2102
RICHMOND, VA 23219-241ti
RE: Request for extension on Agreement 76607-07
Deaz Mr. Sleeper and Mr. King:
(804)786-4440
FAX (804) 225-3752
VIRGINIA RELAY CENTER
1-800-828-1120 (TDD)
The Department of Rail and Public Transportation (the "Deparhnent") is in receipt of Mr. Sleeper's letter
dated December 22, 2011, requesting an extension on Rail Industrial Access Agreement No. 76607-07 for 24
months in order to work with Swedwood North America, LLC on meeting performance requirements. The
Department awarded Pittsylvania County and the City of Danville $450,000 each for the construction of a rail
spur to serve the Swedwood facility and run at least 520 cars annually within the five-year performance
window.
The Department will grant a conditional extension for 24 months with payback. This means that pursuant to
section 1 1 of the Grant Agreement, the City of Danville and Pittsylvania County must repay the full grant
amount of $900,000 ($450,000 each) at a rate of $37,500 per month ($18,750 each per month), with the
understanding that after 24 months the Department will close the project. If during the 24 month period, the
County and City utilize the track for its intended purpose, the Department will re-evaluate the grant
relationship and consider reimbursing the localities for the grant amount repaid to date.
The Department will work with the County and City within the next 90 days to begin repayment. If you have
any questions, please call Kevin Page, Chief Operating Officer, at (804) 786-3963.
Sincerely,
Thelma Drake
The Srrt~rr•test Dist~rrace BeteoeeTa Tu~o Points
tc~tt zu da~zt. zd z ~~ irtia,,~ oz~
P131
~~~°~~~~v~~va~ c®~~r~~
VIRGINIA
~'CSY LLS
.r tii
William D. Sleeper Ca ~ 9~ Phone (434) 432-7710
County Administrator O
t.L ~ dt ~ O Fax (434) 432-7714
P.O. Box 42G a r 4 c
a / O N z Gretna/Hurt (434) 656-6211
Chatham, Virginia 24531 „ ~ y
dan.sleeperCpittgov.org \ ''/6 '~ t BachelorsHall/Whitmell (434)797-9550
December 22, 201 I
Ms. Thelma Drake
Director of Rail Transportation
Virginia Department of Rail R
Public Transportation
600 East Main Street, Suite 2102
Richmond, VA 23219
Re: Swedwood Rail Service -Pittsylvania County
Dear Ms. Drake:
Attached hereto, you will find copies of my letter of February 18, 20! I requesting a 36 month extension for Danville and
Pittsylvania County on Agreement No. 76607-07, that is dated December 14, 2006 between the City of Danville and
Pittsylvania County and the Commonwealth of Virginia for rail service with Swedwood North America. As you are aware, we
have had difficulty with Swedwood North America, LLC, meeting the requirements of 520 rail cars per year. In July, 1 received
a letter from Kevin Page, Chief of Rail Transportation from the Department of Rail and Public Transportation, requesting in
accordance with the referenced agreement that Pittsylvania County submit the annual rail car load report on the behalf of
Swedwood Intemational, Inc. To insure that we are moving forward with the required paperwork, I have filled out the form
designated for RIA Project 192 -Swedwood Track Construction. There have been no carloads utilizing this rail spur since its
construction in 2007. I have therefore filled out the required report for no carloads during that period on the behalf of
Swedwood North America, LLC. The original commitment was by Swedwood International, Inc. It should now reflect the new
American Company name.
Therefore, in accordance with the requirements of the Virginia Department of Rail and Public Transportation, I am again
requesting your support before the Virginia Transportation Board to grant an extension on Contract No. 76607-07, dated
December 14, 2006 for 24 months. The contract deadline is December 14, 201 I and the County and City would have to repay
the Rail and Transportation Division in the amount of $375,000 each by February 12, 2012. Therefore, I request that you take
immediate action to consider this request fora 24 month extension for Pittsylvania County and the City of Danville on
Agreement No. 76607-07.
Your attent~ in this matter is greatly appreciated. You will find the necessary documentation attached hereto
Si
County Administrator
wnsikp
Cc. Honorable Wdbam M `Bdl" Stanley. Jr
lonorable Delegate Daniel W "Danny" Marshall, III
Honorable Delegate lkmald W Mcrncks
Honorable Senator Frank Run'
Honorable Members ol'the Hoard of Supervisors
J Vaden Hunt. County Attorney
Ous S Hawker, Assstant County Administrator
Greg L Sides, Assistant County Admtmstrator
F:en Oowman. Duector of f:eonomic Development
Joe Kmg. Cuy Manager, C'iq~ of Danvdlu
Jeremy Stratton. Dtrce[or of Dconomtc Development. Gp~ o(DanvJle
P132
Virginia dlepartment of Rail and Public Transportation
Rail Industrial Access Performance Report for FY 2010
R1A Project 192 -Swedwood Track Construction
To: Kevin B. Page
Chief of Rail Transportation
Virginia Department of Rail and Public Transportation
600 East Main Street, Suite 2102
Richmond, VA 23219
Dear Mr Page:
Pursuant to the Rail Industrial Access Agreement between the Department and the City of
Danville and Pittsylvania County, entered into on December 14, 2006 for "...construction of 4,800
+/= feet of track including three in-plan switches...", the Performance, as defined by annual
carloads, shall be reported annually for consideration in determining if the public benefit has been
achieved as committed by Swedwood International, Inc..
Pertormance runs on the Commonwealth's fiscal year schedule (July 1 -June 30). Below is the
annual auditable quantity of carloads for the Performance Period annual reporting requirement:
Report Period of Annual Carloads Year of Performance
Performance Period
July 1, 2007 -June 30, l
2008 Q
July 1, 2008 -June 30, 2
2009 [7
July 1, 2009 -June 30, 3
2010
July 1, 2010 -June 30, 4
2011
July 1, 2011- June 30, Future Yeaz - TBD 5
2012
I swear affirm that the foregoing information is full, true, correct and auditable to the best of my
~~//a
~~ -
~/ '' ~'q_
~
/~
nature of Authori d Rep sen ive Printed Name Date
COMMONWEALTH OF VIRGINIA
~'/County of to wit:
The foregoing Performance form was acknowledged before me this
_Day ~L'f/)70f ,20~by_fl//i~~~/YI~.~J~~EP~ie
(Name of Representativ )
My commission expiresl`~~~~i~j r ~~ /~.c~.~il ~
~" Notary Public ... ooooa?oePooeoooo
_ : ° _ c'0. D " R,'..°~e_ .
~° -"` ~ REG # 310861
„{ m•:'~.L~tr corar,;lssiav a `1.
;> ~~~; ~ [XPIRES _
e~ .'
P133
SENATE OF VIRGINIA'.' FEB 282011
WILLIAM M. STANLEY
19in SENPTOgIPI OISTRICL
9LL OF FRANKLIN qN0 pITTSYLVANIq COUNTIES
LL OF THE CITY OF OANVILLE~
qNO PPRI OF CgMPBELL COV NTY
13506 BOOttER T. Wg5H1NGTON XIGH WPV
MONETq~ VIRGI NIq 29121
February 25, 2011
Mr. William D. Sleeper
County Administrator
Pittsylvania County
P. O. Box 426
Chatham, VA 24531
Re: Swedwood Rail -Pittsylvania County/City of Danville
Dear Dan:
COMMITTEE ASSIGNMENTS.
GENEapL LPWS pNO TECNNOLCGV
LQ'AL GOVERNMENT
REMABILITPTION PNO vOCIgL SERVICES
Thank you for the copy of your February 18`h letter to Thelma Drake. As a follow-
iip to your letter, I personally met with Director Drake this week about the
Swedwood rail matter.
Specifically, you and I share the concern that we needed to extend the contract
with the Virginia Transportation Board and the Board of the Virginia Department
lil iCdi aiiu i UL,.iC .~c, ..~...
After a good discussion, Ms. Drake agreed with the need for an extension of the
contract. However, I believe that the State will be willing to grant Pittsylvania
County and the City of Danville atwenty-four month extension, (and not athirty-
six month extension as you requested), which will be granted at the end of the
original contract term, thus maximizing the time benefit of the extension. If
another extension is required after that, the State would most likely look favorably
upon such a request.
RIC HMONP (fi0A1696 7619 EMAIL. DIfiTRICTl9@SENATEVIROI NIA.GOV
P134
I am gratified to know that the State is committed to the success of the Swedwood
Rail project, and that extending the contract will keep the City of Danville and
Pittsylvania County from having to repay the rail transportation funds provided by
the State at the end of this year.
I will continue to stay involved in this matter to ensure the success of the project,
and if you require any assistance from me in this matter, or any other, please do not
hesitate to contact me.
Thank you for your consideration in this regard.
Until then, I remain
Ve yours,
William M Stanley
Senator, 19`h District
Pc: The Honorable Danny Marshall, Delegate 14`h District
The Honorable Don Merricks, Delegate 16"' District
The Honorable Charles Poindexter, Delegate 9"' District
J. Vaden Hunt, Esq., County Attorney, Pittsylvania County
Mr. Otis S. Hawker, Asst. County Administrator, Pittsylvania County
Mr. Greg L. Sides, Asst. County Administrator, Pittsylvania County
Mr. Ken Bowman, Director, Economic Development, Pittsylvania County
Mr. Joe King, City Manager, City of Danville
Mr. Jeremy Stratton, Director, Economic Development, City of Danville
P135
PITTSYLVANIA COUN'T'Y
VIRGINIA
.~'CSY L~9
l '~j
William D. Sleeper w¢ - 9~ Phone (434) 432-7710
,..~
County Administrator o ~
P.O. Box 426 a c Fax (434) 432-7714
a 1 0 ~ z Gtema/Hurt (434) 656-6211
Chatham, Virginia 24531 ,,; `~ `~/ -i
dan.sleepet@pittgov.org J' X767 ~ t' Bachelors Hall/Whitmell (434) 797-9550
1'r_ P
February 18, 2011
Ms. Thelma Drake
Director of Rail Transportation
Virginia Department of Rail &
Public Transportation
600 East Main Street
Richmond, VA 23219
Re: Swedwood Rail -Pittsylvania County/City of Danville
Deaz Ms. Drake:
Subsequent to our previous communications concerning the Swedwood Rail at the Cane
Creek Industrial Pazk in Pittsylvania County and the City of Danville, I am requesting
that your office support a 36-month extension for Danville and Pittsylvania County on
the Agreement 76607-07 dated December 14, 2006 between the City of Danville and
Pittsylvania County for rail service to Swedwood North America. We have had difficulty
with Swedwood North America meeting the requirements of a 520 rail cars per day that
we originally identified in this project due to changes in the economy and contract
services with Swedwood North America. However, the County, the City and Swedwood
are moving forwazd with designs of future expansions. It is the anticipation of
Swedwood that they will still need the rail service for their future expansion.
Therefore, I am requesting that you support an extension of our current contract to the
Virginia Transportation Boazd and the Boazd of the Virginia Department of Rail and
Public Service to allow us time necessary for the expansion of this industrial facility to
utilize this track. The current deadline for this project is December 14, 2011, and in
accordance with Section 16 of the Agreement, the County and the City would have to
repay rail transportation funds in the amount of $375,000 each by February 12, 2012.
Your attention in this matter is greatly appreciated. Attached hereto, you will find
documentations reference in previous communications.
P136
Ms. Thelma Drake
Director of Aail Transportation
Swedwood Rail - Pittsylvania County/City of Danville
February 18, 20I 1
Page 2
Sincere /J
William „/Z////
County Administrator
WDS/kp
Attachments
Cc: Honorable Senator William M. "Bill" Stanley, Jr.
Honorable Delegate Daniel W. "Danny" Marshall, III
Honorable Delegate Donald W. Merricks
Honorable Delegate Chazles D. Poindexter
J. Vaden Hunt, County Attorney
Otis S. Hawker, Assistant County Administrator
Greg L. Sides, Assistant County Administrator
Ken Bowman, Director, Economic Development, Pittsylvania County
Joe King, City Manager, City of Danville
Jeremy Stratton, Director, Economic Development, City of Danville
P137
0
v
"' `! 2 5 2010:
COMMONWEALTH of VIRCjrINIA
aYit~IG~Is16R:4KE
Dircetor
DEPARTMENT OF RAIL AND PUBLIC TRANSPORTATION
600 EAST MAIN STREET, SURE 2102
RICHMOND, YA 23219-2416
(804) 786-0440
FAX (804)2253752
VIRGMIA RELAY CENTER
t-800.828-1120 (TDD)
June 1'l, 2010
Mr. William D. Sleeper
Pittsylvania County Administrator
P.O. Box 426
Chatham, VA 24531
RE: Rail Industrial Access Grant performance for Swedwood Rail Spur
Deaz Mr. Sleeper:
The Department of Rail and Public Transportation (DAFT) has received and considered your request on behalf
of Pittsylvania County and the City of Danville for a waiver of the performance requirements, or an extension
on performance requirements, associated with Agreement 76607-07.
The Rail Industrial Access Grant program is an economic incentive program tied to performance criteria,
specifically with this Agreement to remove trucks from highways and utilize freight rail. Agreement 76607-07
between DRPT, Pittsylvania County, and the City of Danville specifies in Section 11 "Failure to meet annual
cazload projection within five yeazs of the date of Agreement qualifies Project for termination and repayment
as outlined in Section 16." We have decided not to grant a waiver for these performance requirements.
In order to avoid repayment of funds by Pittsylvania County and the City of Danville in the amount of
$900,000, Swedwood must run 520 annual carloads by December 14, 2011. DRPT will work with the County
and City on a repayment arrangement if performance is not met by the December 14, 2011 performance date.
If you have any questions, please contact Kevin Page, Chief of Rail Transportation at 804.840.3706 or
Kevin.Page@drpt.virginia.gov.
Sincerely,
~~ ~/G4.K ~---
iPttelm~ Uialte
Enclosure
The Smartest Distance Between Two Points
www. drbt. virvinia. vnv
P138
VIRGINIA
4~~.` Y 1. A ~~
Otis S. Hawker ~, ~C Phone (434) 432-7722
Assistant Coung~ Administrator o lL ~ ~ o Fax (434) 432-7714
P.O. Box 426 a tY 4,v{ .~~[ Gretna/Hurt (434) 656-6211
Chatham, Virginia 24531 ~ ~' ~ '~ Y Bachelors Han/Whitmell (434) 797-9550
otie.hawker@pittgov.org nd~
May 20, 2010
Ms. Thelma Drake
Director of Rail Transportation
Virginia Department of Rail &
Public Transportation
600 East Main Street, Suite Z 102
Richmond, VA 23219
Re: Swedwood Rail Service - Pittsylvania County
Dear Ms. Drake:
Attached hereto, you wilt find a package of information sent from County Administrator, Witham D. Sleeper and former
City Manager M. Lyle Lacy, [[f, to Governor Timothy Koine requesting consideration of a waiver for required
reimbursement of the costs provided by the Department of Rail and Transportation for a rail spur line constructed to serve
Swedwood North America. As you can see from the package due to conditions beyond t[te control of tfie County or tfie
City, the industry was not able to utili7~ the rail service as originally projected. Currently, Swedwood is in the process of
expandingsts existing facilities in Pittsylvania County and Danville. The proposed expansion would provide substatrtial
capital investment and newjobs. In their previous building measuring almost 1,000,000 square feet and employing over
308 employees, Swedwood has more than met its proposed investments attd employment that was originally projected for
this project. With the proposed expansion, both new investments and new jobs will have been created in Southside
Virginia. Because it is anticipated that two more phases of expansion would occur with Swedwood and they have
requested that the rail not be removed. i am requesting your consideration of a waiver at this time or an extension on [he
requirements ofrail service to the Swedwood rail.
You attention in this matter is greatly appreciated. If you require any additional information, please do not hesitate to
contact my office.
Sincerely,
~amer~ • ~~~/~
County Administrator
WDS/kp
Attachment
CC: llonorablc John P. Light, Legal Counul
for King. City Manager
Gtis S. Hawker, Assistam County Administrnmr
Greg Sides, Assistant County Administrator
Ken Onwman, [lirector, liconnmic Ikvelopment - PiLLSylvania County
Jeremy Stratton, Director. [conomic tkvelopmcnt -City of Danville
P139
City of Danville T'.~19s.~~~1J~tr;<iu C(rc~~7t}~
~~ 4~, Virginia Virginia -r,
P.O. Box 3300 I'.(9. 91ox -t2G
Danville, Virginia 24543 t'h.uham, i'irginia 2d~31
Phone (434} 799-5100 I'hoiac (-f34- a32-7710
Fax (434) 799-6549 Fax {.13a) a32-7 i t d
January 6, 2010
Honorable Timothy M. Koine, Governor
Office of the Governor
Patrick Henry Building
Executive Office Building, 3`d Floor
311 i East Broad Street
Richmond, VA 23219
Re: Swedwood Industrial Comptex
Dear Governor Kaine:
When the staff' from the City of Danville-Pittsylvania County and the Virginia Partnership met
with the Governor's office in 2006 to try to locate Swedwood North America in the Cane Creek
Centre Industrial Park owned by the Danville-Pittsylvania County's Regional Industrial
Facilities Authority, one of the main requested incentives was rail access from the Notfolk-
Southern Railway to the Swedwood facility. Swedwood by letter had agreed to utilize at least
520 cars per year or 2 cars per day in order to meet the criteria for the industrial rail access
funds from the Virginia DeparGnent of Rail and Public Transportation. Iq addition, to complete
that rail, the Governor's office awarded a Housing Community Development Grant to
Pittsylvania County in the amount of $700,000 to match the $900,000 Industrial rail access
funds in order to have the $1.4 million necessary for the project. The Memorandum of
Agreement required the Danville City Council and the Pittsylvania County Boazd of
Superv'ssors' to make the application for rail access funds.-'fi~e problem azises at this point
wherein Swedwood is not utilizing the rail as agreed to in the location process. Because the
City and County are not at fault for this change by the industry, we aze requesting your support
with the Virginia Transportation Board to waive the requirement of the number of rail cars
necessary since this negotiation occurred during the process of trying to locate this industry in
Virginia. Future expansion of this Park may still require this rail.
Therefore, on the behalf of the Pittsylvania County Board of Supervisors and Danville City
Council and the Danville-Pittsylvania Regional Industrial Facilities Authority, we are
requesting your support to waive the requirement of 520 cars per year on this rail spur since the
P140
The Honorable Timothy M. Kaine
Swedwood Industrial Complex
January 6,2010
Page I of 2
localities did not do the direct negotiation but were eager to assist the State and the partnerships
in locating this industry. Attached hereto are the referenced dxuments.
Your attention to this matter is greatly appreciated,
Sincerely
~~~
William D, Sleeper
County Administrator
WDS/rf
Enclosures
Exhibit "A" Letter from Swedwood
Exhibit "B" Excerpts from MOA-Rail Access
Exhibit "C" Industrial Rail Access Fund Agreement
Cc: Honorable Members Regional Industrial Facilities Authority
Honorable Sohn P. Light, Legal Counsel
M.Z,yle Lacy, 1tI t~
City Manager
vial
~- ~~ ~ ~i i ' ~1' ~1 ~1'
November 16, 2006
Regional Industrial Facilities Authority
c% Mr. William D. Sleeper
Post Office Box 426
Chatham, Virginia 24531
Dear Mr. Sleeper:
Swedwood North America has chosen Cane Creek Centre for its first North American
manufacturing facility. Phase I of our new facility will involve the construction of
approximately 1,000,000 square feet of manufacturing space and 271 new jobs created. Total
capital investment for Phase I is anticipated to be $85,500,004.
The Cane Creek Centre facility will require the use of rail. We anticipate 2 rail cars a day
bringing in wood raw materials, for an annual total of 520 rail cars. After the completion of
Phase l we expect the facility will be expanded and thereby requ've the use of additional rail
facilities.
P142
Sincerely,
PITTSYLVANIA COUNT
VIRGINIA
Office of Grants Administration
P.O. Box 426
Chatham, Virginia 24531
e-mail: Linda.Mills@pittgov.org
November 20, 2008
Mr. Brad Belo, Community Representative
Department of Housing and CommuniTy Development
501 North Second Street
The Jackson Center
Richmond, VA 23219-1321
Re: Community Improvement Grant #06-CED-30
Swedwood Danville, L.L.C., Rail Spur Project
Final Evaluation Report -Quarterly Update
Final Report
Dear Mr. Belo:
EXHIBIT
«C»
Phone (434) 432-7716
Fax (434) 432-7746
Gretna/Hurt (434) 656-6211
Bachelors Hall/Whitmell (434) 797-9550
Enclosed is the Final Evaluation Report for CIG #06-CED-30 for the Swedwood
Danville, L.L.C., Rail Spur Project. As of August 4, 2008, Swedwood has created 210
jobs, which exceeds the 208 proposed beneficiaries.
Please give me a call if you have any questions regarding this form.
Sincerely,
~~~yr`~^' ~j ,
~ ~d
Linda R. Mills
Grants Administrator
Enclosures
C:VWilliam D. Sleeper, County Administrator
P143
PITTSYLVA A COUNTY BOARD OF SU ~,KVtavn EXHIBIT
RESOLUTION ccDa
2006-11-90
A RESOLUTION APPROVING THE SUBMISSION OF A JOINT GRANT APPLICATION TO
THE VIRGINIA DEPARTMENT OF RAIL AND PUBLIC TRANSPORTATION
WHEREAS, the City of Danville and Pittsylvania County have jointly developed the Cain Creek
Centre and established the Regional Industrial Facilities Authority to govern joint projects; and
WHEREAS, Swedwood North America has expressed its intent and desire to the Danville City
Council and the Pittsylvania County Board of Supervisors to locate its Industrial Operations in the Cane
Creek Centre located in Pittsylvania County, Virginia; and
WHEREAS, Swedwood North America and its operation will require rail access and the
construction of substantial rail infrastructure; and
WHEREAS, on October, 12, 2006 Governor Timothy M. Kaine announced the Swedwood North
America project as the largest economic development project in City and County history and pledged
significant State, Regional and Local incentives as playing a key role in winning the project for the
Commonwealth; and
WHEREAS, City and County officials have: reported to Swedwood North America their intent to
jointly apply for Rail Industrial Access Grant funds from the Commonwealth of Virgiriia's Department of
Rail and Public Transportation in the amount of $900;000 - $450;000 by the City of Danville and
$450,000 by Pittsylvania County;
NOW THEREFORE, BE IT RESOLVED that the Board of Supervisors of Pittsylvania County
hereby applies for .$450,000 in Industrial Access Railroad Track Funds and authorizes the County
Administrator to enter .into an Agreement with the Department of Rail and Public Transportation and the
City ofDanville-for said funds, if awarded by the Commonwealth Transportation Board; and
NOW BE, IT FURTHER RESOLVED that-the Board of Supervisors of Pittsylvania County
endorses and supports the Danville City Council application of $450,000 in Industrial Access Railroad
Track Funds; and
BE IT FURTHER RESOLVED, that the Board of Supervisors of Pittsylvania County hereby
makes known its desire and the ihtent to assist the Commonwealth Transportation Board in providing the
maximum financial assistance to Swedwood North America for the purpose of locating its industrial
facility in the Cane Creek Centre in the Coutity of Pittsylvania. Virginia.
Given under my hand this 16~' day of November 2006
///~~ //~ p~,
' M. Kate Berger, M~tlam Chairwoman
Pittsylvania County"Board of Supervisors
~ s
e~ ~'
William D. Sleeper, Cle
Pittsylvania County Board of Supervisors
Piaa
f Z
PRESENTED: November 9, 2006
ADOPTED: November 9, 2006
RESOLUTION N0. 2006- 11 03
A RESOLUTION APPROVING THE SUBMISSION OF A JOINT
GRANT APPLICATION TO THE VIRGINIA DEPARTMENT OF RAIL AND
PUBLIC TRANSPORTATION.
WHEREAS, the City of banville and Pittsylvania
County have jointly developed the Cain Creek Centre and
established the Regional Industrial Facilities Authority to
govern joint projects; and
WHEREAS, Swedwood North America has expressed its
intent and desire to the Danville City Council and the
Pittsylvania County Board of Supervisors to locate its
Industrial Operations in the Cane Creek Centre located in
Pittsylvania County, Virginia; and
WHEREAS, Swedwood North America and its operation
will require rail access and the construction of substantial
rail infrastructure; and
WHEREAS, on October 12, 2006 Governor Timothy M.
Kaine announced the Swedwood North America project as the
largest economic development project in City and County
history and pledged significant State, Regional and Local
incentives as playing a key role in winning the project for
the Commonwealth; and
OFFICE OF THE
CITY ATTORNEY
CITY OF
DANVILLE, VIRGINIA
P145
1
WHEREAS, City and County officials of have reported
to Swedwood North America their intent to jointly apply for
Rail Industrial Access Grant funds from the Commonwealth of
Virginia's Department of Rail and Public Transportation in the
amount of up to $900,000, up to $450,000 by the City of
Danville and up to $450,000 by Pittsylvania County.
NOW THEREFORE, BE IT RESOLVED that the Danville City
Council hereby applies for up to $450,000 in Industrial Access
Railroad Track Funds and authorizes the City Manager to enter
into an Agreement with the Department of Rail and Public
Transportation and Pittsylvania County for said funds, if
awarded by the Commonwealth Transportation Board; and
BE IT FURTHER RESOLVED that the Danville City
Council endorses and supports the Pittsylvania County
application of up to $450,000 in Industrial Access Railroad
Track Funds; and
BE IT FINALLY RESOLVED, that the City of Danville
OFFSCE OF THE
CITY ATTORNEY
CITY OF
DANVILIE, VIRGINIA
hereby makes known its desire and the intent to assist the
Commonwealth Transportation Board in providing the maximum
financial assistance to Swedwood North America for the purpose
of locating its industrial facility in the Cane Creek Centre
in the County of Pittsylvania, Virginia.
2
P146
APPROVED:
OFFICE OF THE .
CITY ATTORNEY
CITY OF
DANVILL E, VIRGINIA
ATTEST:
CL' K
Approved as
F~rrn, and Leaa Sufficiency:
Attorney
P147
v~
IAYOR
I Cerdty thitt to ba a true
and correct copy of the original
document on fife in my office.
Annette Y. Crane, CMC„Ciry Clerk ,
BY~ljl2?
EXHIBIT
«E„
MEMORANDUM OF AGREEMENT
This Memorandum of Agreement (this "Agreement"}, dated this _ day of October
2006, by and among SWEDWOOD DANVILLE, LLC, a Delaware limited liability company
("Swedwood"}, the COMMONWEALTH OF VIRGINIA (the "Commonwealth"}, the
TOBACCO INDEMNIFICATION AND COMMUNITY REVITALIZATION
COMMISSION, a political subdivision of the Commonwealth (ihe "Commission"), the
COUNTY OF PITTSYLVANIA, a political subdivision of the Commonwealth (the "County"},
the DANVILLE-PITTSYLVANIA REGIONAL INDUSTRIAL FACILITY AUTHORITY,
a political subdivision of the Commonwealth (the "Authority"), and the CITY OF
DANVILLE, a municipal corporation organized under the laws of the Commonwealth (the
"City"), recites and provides as follows:
Recitals
Swedwood is owned by Swedwood Holding, Inc. and Swedwood Holding BV and is part
of the Swedwood industrial group owned by INGKA Holding B.V. ("IKEA"}. Swedwood
intends to construct and establish Swedwood's first U.S. manufacturing facility at the Cane
Creek Industrial Centre ("Cane Creek") in Pittsylvania County, Virginia.
Swedwood plans to begin construction of a manufacturing facility in 2006 as part of an
initial phase oldevelopment at Cane Creek ("Phase 1 "}, and expects to complete [he Phase 1
manufacturing facility by the end of 2010. Phase 1 will entail a total capital investment oC
approximately $85,500,000, of which approximakely $62,300,000 is expected to be invested in
equipment and $23,200,000 is expected to be invested in the construction of buildings. It is
expected that 271. persons will be employed with respect to the Phase I manufacturing facility.
P148
~~
1
,vedwood, at its election, for each additional phase of investment and employment that it
undertakes.
NOW, THEREFORE, the parties agree as follows:
1. Swedwood's Commitments
1.1 Capital Investment. With respect to the Phase 1 incentives, Swedwood
agrees to make a total capital investment of $85,500,000 in locating and constructing the Phase 1
manufacturing facility, including investments of approximately $62,300,000 in equipment and
approximately $23,200,000 in the construction of buildings. It is intended that this investment
will be completed by December 31, 2010. (The commitment provided for in this Section 1.1
shall be referred to in this Agreement as the "Phase 1 Capital Investment Obligation").
1.2 Employment. With respect to the Phase 1 incentives, Swedwood agrees
to employ approximately 271 persons at the Phase 1 manufacturing facility by approximately
December 31, 2010. These jobs will pay an average annual salary of approximately $27,310,
which amount exceeds Pittsylvania County's prevailing average annual wage of $26,573, and
will be provided with standard employee health benefits. (The commitment provided for in this
Section 1.2 shall be referred to in this Agreement as the "Phase 1 Employment Obligation").
1.3 No Other Commitments. The Phase 1 Capital Investment Obligation
red in Section 1.1 and the Phase 1 Employment Obligation described in Section 1.2
ent Swedwood's only commitments with respect to its locating in Pittsylvania County. As
;sed in greater detail in Section 2 below, additional incentives have been offered by the
nonwealth, the County, the Authority, and the City if Swedwood chooses to undertake
onal phases of construction as part of the 4-Phase Project.
P149
~ndin8 recommendations to the Governor for those program years. The funds shall be used for
~• purposes qualified under the Workforce [nvestment Act of 1998. The W1A Grant will not be
subject to ar.y repayment obligation on the pari of Swedwood.
2.7 Rail Industrial Access Program Grant. Upon proper application by
Swedwood, the County, ariti the City, and in accordance with applicable law and guidelines, the
Commonwealth, through the Virginia Department of Rail and Public Transportation, will award
a grant of up to $790,000 to construct or extend railroad facilities to Swedwood's Phase 1
manufacturing facility at Cane Creek. The County and the City shall make timely resolutions
requesting up to $790,000 in grant funds from, and to make proper application for such grants to,
the Virginia Department of Rail and Public Transportation. Upon submission of the appropriate
documentation, the Commonweahh's grant from the Rail Industrial Access Program will be paid
to reimburse Swedwood on a first priority basis for any costs that it incurs with respect to the
construction and extension ofrailroad facilities to the Pitase I manufacturing facility. Funds not
used for such reimbursements maybe used to offset expenses the County or the City incurs with
respect to the construction and extension of railroad facilities to the Phase 1 manufacturing
facility.
if Swedwood undertakes to build a second manufacturing facility as part of Phase 2 of
the 4-Phase Project, the Commonwealth, through the Virginia Department of Rail and Public
Transparlation, will make an additional grant of up to $450,000 farthe construction and
extension of rail facilities to the second facility. To receive this grant, Swedwood shall provide
written notification to the County that it intends to construct a second manufacturing facility at
Cane Creek. Upon receipt of this notification, the County and the City shall adopt a resolution
requesting the additional grant Crom, and to make proper application for the grant to, the Virginia
]5
viso
Department of Rail and Public Transportation. Upon submission of the appropriate
documentation, the Commonwealth's grant from the Rail Industrial Access Program will be paid
to reimburse Swedwood on a first priority basis for any costs that it incurs with respect to the
construction and extension of railroad facilities to the Phase 2 manufacturing facility. Funds not
used for such reimbursements may be used to offset expenses the County or the City incurs with
respect to the construction and extension of railroad facilities to the Phase 2 manufacturing
facility.
[f Swedwood undertakes to build a third manufacturing facility as part of Phase 3 of the
4-Phase Project, the Commonwealth, through the Virginia Department of Rail and Public
Transportation, will make an additional grant of up to $450,000 for the construction and
extension of rail facilities to the third facility. To receive this grant, Swedwood shall provide
written notification to the County that it intends to construct a third manufacturing facility at
Cane Creek. Upon receipt of this notification, the County and the City shall adopt a resolution
requesting the additional grant from, and to make proper application for the grant to, the Virginia
Department of Rail and Pubic Transportation. Upon submission of the appropriate
documentation, the Commonwealth's grant from the Rail Industrial Access Program will be paid
is reimburse Swedwood on a first priority basis for any costs that it incurs with respect to the
construction and extension of railroad facilities to the Phase 3 manufacturing facility. Funds not
used for such reimbursements may be used to offset expenses the County or the City incurs with
respect to the construction and extension of railroad facilities to the Phase 3 manufacturing
facility.
The County and City each agree to "match" up to $150,000 (or a total of $300,000) of the
Rail Industrial Access Program grants for Phase 1 (as described in Section 3.4 below). In
16
P151
addition, the County and City each agree to match up to $75,000 (or a total of $150,000) of the
Rail Industrial Access Program grant for the construction and extension of rail facilities to the
second facility (as described in Section 3.4 below). Further, the County and City each agree to
match up to $75,000 (or a total of $150,000) oC the Rai] Industrial Access Program gram for the
construction and extensiomof rail facilities to the Third facility (as described in Section 3.4
below).
Each of the County, the Authority, and the City agrees to provide all reasonable
assistance and to cooperate fully with Swedwood with respect to the construction and extension
of the railroad facilities to its manufacturing facilities. The County's and the City's obligation
shall be to expend the funds provided by this Section 2.7 and pursuant to Section 3.4, and, when
those funds have been exhausted, the County and the City shall have no further obligation {other
than assistance and cooperation} regarding construction and extension of railroad facilities.
Any grants made under the Rail Industrial Access Program shall not be subject to
repayment by Swedwood and shall be subject only to Swedwood's location of its operations at
Cane Creek, without regard to the specific obligations described in Section L I and Section l .2
above.
2.8 Economic Development Access Program. Upon proper application by
Swedwood, the County, and the City, the Commonwealth, through the Virginia Department of
Transportation ("VDOT"}, will award a grant of up to $300,000, plws up to an additional
$150,000 (subject to the County's and City's dollar-for-dollar match described in Section 3.5
below), from the Economic Development Access Program for the cost of establishing an access
road and transportation facilities to the Project Site (as defined in Section 3.1 below). This grant
will be payable in the first year {anticipated to be 2007) following Swedwood's location of its
17
P152
If the anticipated capital investment in equipment by Swedwood is decreased from the levels
reflected in the capital investment schedule above, the economic incentives above shall decrease
in proportion to that decrease. Conversely, if the anticipated capital investment in equipment by
Swedwood is increased from the levels reflected in the capital investment schedule provided
above, the economic incentives above shall increase in proportion to that increase. In addition, if
the timing of Swedwood's capital investment in equipment changes, the timing of the economic
incentives shall also change. Swedwood shall have no repayment obligation with respect to the
Local EZ Investment Grants.
3.4 Rail Industrial Access Program Grant Match. The County and the City
each agree to match up to $150,000 of the Rail Industrial Access Program grants described in
Section 2.7 above (for a total match of $300,000) with respect to the construction and extension
of railroad facilities to the Project Site for Phase 1 of the project. The County and the City shall
have no obligation to match the Rail Industrial Access Program grants if the use of funds from
the grant contemplated by this Section from the Commonwealth to construct and extend the
railroad facilities as contemplated by this Section does not exceed the amount of the grants
therefor from the Commonwealth. These grants shall be payable in the first year (anticipated to
be 2007) following Swedwood's decision to locate its manufacturing operations at Cane Creek,
and shall be payable, at Swedwood's election, in the form of an offset of the direct costs incurred
by the County for extending the railroad facilities to the Project Site or as reimbursement to
Swedwood for its costs with respect to the railroad facilities in accordance with the Rail
Industrial Access Program of the Commonwealth. In addition, the County and City each agree
to match up to $75,000 (or a total of $150,000) of the Rail Industrial Access Program grant for
25
P153
,~
construction and extension of rail facilities to Swedwood's Phase 2 manufacturing facility at
Cane Creek, payable at the same time as in Section 2.7 above and, at Swedwood's election, in
the form of an offset of the direct costs incurred by the County for extending the railroad
facilities to the Phase 2 manufacturing facility or as reimbursement to Swedwood for its costs
with respect to the railroad facilities. Further, the County and City each agree to match up to
$75,000 (or a total of $150,000) of the Rail Industrial Access Program grant for the construction
and extension of rail facilities to Swedwood's Phase 3 manufacturing facility at Cane Creek,
payable at the same time as in Section 2.7 above and, at Swedwood's election, in the form of an
offset of the direct costs incurred by the County for extending the railroad facilities to the Phase
3 manufacturing facility or as reimbursement to Swedwood for its costs with respect to the
railroad facilities.
3.5 Economic Access Development Grant Match. If the cost of establishing
an access road and transportation facilities to the Project Site exceeds $300,000, the County and
the City each agree to match dollar-for-dollar up to $75,000 (or a total of $150,000) of the
Economic Development Access Program grant to the extent of such excess cost. For example, if
the cost of establishing a road and facilities to the Project Site totals $400,000, the
Commonwealth, through VDOT, will provide a total grant of $350,000, the County will provide
a matching grant of $25,000, and the City will provide a matching grant of $25,000. The County
and the City shall have no obligation to match the Commonwealth's Economic Development
Access Program grant if the cost of establishing the access road and transportation facilities to
the Project Site does not exceed $300,000.
3.6 Fast-Track Development Facilitation. The County and the City each
agree to give the review and processing of Swedwood's site plan (genera] review time of less
26
P154
EXHIBIT
«F„
76607-07
AGREEMENT
INDUSTRIAL ACCESS RAILROAD TRACK
Virginia Department of Rail and Public Transportation
And
Applicant City of Danville and Pittsylvania County, Virginia
Pitisylvania County, Virginia
~ P155
INDUSTRIAL ACCESS RAILROAD TRACK AGREEMENT
THIS AGREEMENT, made and executed in triplicate as of the 14a' day of December 2006,
between the VIRGINIA DEPARTMENT OF RAIL AND PUBLIC TRANSPORTATION,
hereinafter referred to as "Department," acting by and through its Director, and City of Danville
and Pittsylvania County, Virginia, hereinafter referred to as "Applicant"
WITNESSETH THAT:
WHEREAS, Applicant proposes to co»struct an industrial access rail facility to serve City
of Danville and Pittsylvania County, Virginia's Cane Creek Centre facility in Pittsylvania County
to serve Swedwood North America, a subsidiary of IKEA, as set out in its application dated the l6a'
day of November 2006 and stated in Swedwood North America's annual carload commitment letter
dated the l ba' day of November 2006, in which Swedwood North America commits to generate two
railcars per day equating to a total of 520 annual railcars, which the application and the letter cited
above is incorporated herein by reference, and the Applicant desires that the Department participate
in the funding thereof; and
WHEREAS, the respective governing bodies of the City of Danville and Pittsylvania
County have jointly developed Cane Creek Centre Industrial Park as a regional industrial park and
established the Danville-Pittsylvania Regional Industrial Facility Authority (RIFA) to govern joint
projects and the City of Danville and Pirisylvania County each requested by resolution that their
maximum annual allocation as per the Commonwealth Transportation Board policy governing the
Industrial Access Railroad Track program (Rail Industrial Access) be allocated to this joint project,
and
WHEREAS, Applicant will assign the work to RIFA who will be responsible for the
development and construction of the rail facility for the Applicant, and
WHEREAS, the Commonwealth Transportation Board, on December 14's 2006, allocated
2
P156
$900,000 for reimbursement of eligible project expenses, consisting of $450,000 ($300,000
unmatched and $150,000 matched 50(50) allocated to the City of Danville and $450,000 ($300,000
unmatched and $] 50,000 matched 50/50) allocated to Pittsylvania County fora total combined
minimum project. cost including local match of $1,200,000.
WHEREAS, in accordance with §33.1-221.1:1 of the Code of Virginia (1956), as amended,
industrial access railroad track funds may be provided for the construction of such a facility; and
WHEREAS, it is desired by the parties hereto to define the extent of the project addressed
herein, the responsibilities of each party, the manner of performing the necessary work, the method
and time of payment, and to set out additional conditions associated with the use of industrial
access railroad track funds.
NOW, THEREFORE, for and in consideration of the covenants and agreements hereinafter
set forth, it is agreed between the. parties hereto as fo1{ows:
§ 4. The project and interest. to be funded under the terms of this Agreement are described as
follows:
Beginning at the Norfolk Southern Railroad clear point, construction of 4,SOOt/- feet of
track including three in-plant switches as set out in Applicant's application. The work
thus described hereinafter referred to as the "Project" and the cost and expenses in
connection therewith are hereinafter referred to as "Project Expense." Said costs and
expenses shall be limited to a maximum of $900,000 ~o be reimbursed to Applicant by
the Department, Payment by Department, as reimbursement for eligible project. costs
incurred and paid, to Applicant consists of a maximum of $450,000 ($300,000
unmatched and $150,000 matched 50/50) allocated and to be paid to the City of Danville
and a maximum of $450,000 ($300,000 unmatched and $150,(100 matched 50/50)
allocated and to be paid to Pittsylvania County for a total combined minimum combined
3
P157
eligible project cost, including local match, of $1,200,000. Provided total project cost is
less than the stated value herein, the payment, as reimbursement for eligible project
costs, paid by the Deparhnent to Applicant will be reduced proportionately at the rate
described herein.
§ 2. The plans and specifications for this project are identified as follows:
A. Plan sheet. as submitted with application, "Swedwood International, inc., New
Facility, Cane Creek B[vd., Ringgold, Virginia, Project No. SOOOl582, Dewberry
& Davis, Inc." Any other plans and specifications developed for this Project will
be forwarded to the Department for approval and will be attached to this
document.
§ 3. The foregoing plans and specifications shall meet the approval of the serving Railroad.
§ 4. The Applicant is responsible for construction or having reconstructed the Project
proposed under the application. The Applicant is responsible for the payment of all
contractors prior to submitting invoice to Department for reimbursement. The
Department will reimburse the Applicant for actual paid Project cost upon. receipt of the
Applicant's invoice and on-site inspection of Project by the Department. Copies of
contractors' paid invoices must be attached. The Department will only accept invoices
for completed Project. Progressive or partial invoices from Applicant will not be paid.
§ 5. Any work necessary in connection with the Project which is not specifically provided for
in § 4 shall be the responsibility of the Applicant or the Applicant's designated
representative as may be mutually agreed upon by said parties. Alt work shall be done in
accordance with the plans and specifications referred to in § 2 hereof, together with such
other plans and specifications that may be agreed upon by the parties hereto to carry out
the work fully in accordance with the intent of this Agreement and in accordance with
4
P758
good engineering practices.
§ 6. Industrial access railroad track funds shall not be used for the purchase of right of way or
the adjustment of utilities for this Project. The Applicant's certification as to the right. of
way and, if necessary, the responsibility for utility adjustments within the termini of this
Project aze hereby incorporated by reference.
§ 7. The Department shall have access to the Project at all times to inspect and to protect its
ownership interest in the Project.
§ 8. Applicant shall complete the work described in § 1 within a reasonable period of time.
Industrial access railroad track funds allocated to this Project shall be expended and final
billing provided to the Department by December 13, 2008, and, if not expended, may be
withdrawn at the discretion of the Director of the Department of Rail and Public
Transportation, hereinafter referred to as "Director."
§ 9. Applicant has obtained a certification from the railroad company owning the main tine
track to which the Project is connected that any other carrier having trackage rights over
its main track to which the Project connects shall also have unrestricted access to the
Project constructed under this Agreement. Said certification is hereby incorporated by
reference.
§ 10. Applicant hereby agrees to provide or have provided continuous maintenance in
accordance with American Railway )/ngineering and Maintenance of Way Association
(AREMA) standards and to assume all liability in connection with the construction and
operation of the Project.
§ 11. The portion of the Project consisting of the track, ties, and other track materials which is
to be constructed and funded under this Agreement and described in § 1 and § 2 shall be
the property of the Department. No ownership interest in the real estate upon which the
c
P159
Project is situated is claimed by the Department or the Commonwealth of Virginia as a
result of the Agreement. The Department's ownership interest in the improvements will
be more completely defined following comp{etion, inspection, and payment of
Applicant's invoice. The Applicant must achieve 520 annual carload usage of as stated
in Applicant's application within five years of date of Agreement. Failure to meet
annual carload projection within five yeazs of date of Agreement qualifies Project for
termination and repayment: as outlined in § 16. After the initial five-yeaz period, to
protect the Department's long-term interest, the Commonwealth reserves the right to
remove the value of its interest in the property if the tracks aze not used for their intended
purpose.
§ 12. The Applicant may, with the Director's written approval, which approval shall not be
unreasonably withheld, purchase, relocate, sell, transfer, remove or otherwise dispose of
the Project constructed under this Agreement. Any cost involved in the relocation. or
removal of said Project shall be borne by the Applicant or using business. fn the event of
sate or transfer of the Project, the Department must be provided with a contingent
interest in the Project by the Applicant's successor or assign. Such contingent interest
must be approved by the Department prior to the sale or transfer. Following relocation,
the Department's interest will be redefined as determined by the DeparUnent. 1» case of
~-
removal or purchase by the Applicant or the Applicant's successors or assigns, the
Department will be reimbursed the value of its interest in the Project. Said value will be.
determined by the Director based on the gross liquidation value of the materials in the
Project at the time of sale or disposal, but in no event will the value as so determined
exceed the cost of the Project at the time of installation. In the event the facilities are
purchased, they shall still remain available for use by all common carriers.
~ P160
§ 13. It is understood that the conswction of the Project. is to be financed from funds provided
by the Department and expended in accordance with Department regulations. All plans,
specifications, estimates of cost, award of contracts, performance and acceptance of
work, and procedures in general are subject at all times to laws, rules and regulations,
orders and approvals applicable to Department projects of like character. Costs incurred
by the Applicant prior to the effective date of this Agreement will not be paid. Applicant
shall render its paid bills for actual costs and expenses for the Project in accordance with
the Department's accounting procedures (i.e., Federal-Aid Highway Program Manual,
Volume 1, Chapter 4, Section 3, of the Federal Highway Administration and revisions
and supplements thereto). Any items paid to Applicant by the Department and
subsequently found not to be in accordance with said regulations by the Department in
their final audits will be promptly refunded to the Department by Applicant upon
submission of the items so disapproved. Applicant shall render its bill directly to the
Department, and the Department agrees to pay said bills within a reasonable time upon
receipt as provided by law.
§ 14. Upon fifteen (1 S) days notice to the Applicant, the Department may terminate, in whole
or in part, the assistance under this Agreement at any time it is determined that the
Applicant has failed to comply with any provision o[ this Agreement. The Department
shall notify the Applicant promptly in wriiing of such a determination and the effective
date of the termination. The Applicam may request reconsideration by notifying the
Director within 45 days of the date of the Department's notification. The Director shall
not terminate assistance until after the request has been reconsidered but may withhold
funds in the interim.
§ 15. The Applicant may terminate the Project at any time with respect to future assistance or
~ P161
with respect to funds not yet drawn upon by notifying the Director in writing.
§ 16. If the Project is terminated by the Applicant or the Department, the Applicant will
reimburse the Department for all funds received for the Project within 60 days following
notification by the Department of the amount to be reimbursed.
§ 17. Project Monitoring and Inspection will be governed by the following:
A. The Applicant sha!! monitor the Project and each of its contractors to ensure
compliance with this Agreement and that each contractor abides by its contract.
B. The Director or his designated representative may take any action, including the
making of visits to the Project site and the inspection of all books and records of
the Applicant, and any contractor or subcontractor, relating to any project or task
receiving funds under this Agreement, to review activities under this Agreement
and the adequacy of the Applicant's monitoring efforts.
C. The Applicant shall inspect or shall have inspected the work to:
(1) Ensure That it complies with the contract specifications.
(2) Verify quantitative measures of materials installed, such as tie counts.
(3) Verify labor and materials changes for contracts providing for payment
on an actual cost basis.
D. If the serving railroad or the Director determines that any material or construction
r-
is not. in accordance with AREMA and serving railroad standards, the Applicant
shall replace materials or correct any workmanship necessary to cure the
deficiency. The Applicant shall not use any industrial access railroad track funds
to pay for a replacement or correction required under this subsection
§ 18. With the exception of assignment of the work to the Danville-Pittsylvania Regional
Industrial Facilities Authority (RIFA), assignment of any portion of the work or
A aisz
provisions of this Agreement by contractor subcontract shall have the prior approval of
the Director or his designated representative. Such approval shall not be construed to
relieve the Applicant of any responsibility for the fulfillment of this Agreement.
Contracts and/or subcontracts shall include all pertinent provisions of the Agreement and
the Applicant shall be responsible for compliance with those provisions.
§ 19. The Applicant shall at all times observe and comply with all Federal, State and local
laws, regulation, ordinances, orders and decrees applicable to the work or subsequent
operation, and shall indemnify, defend and hold harmless, the Commonwealth, the
Department of Rail and Public Transportation, and its officers, agents, and employees
against any and all claims of liabi{hies arising from or based on the violation or any such
law, regulation, order or decree, whether by persons constituting the Applicant, the
employees of the Applicant, ar any independent contractor engaged by the Applicant or
associated with the Applicant in the performance of the work performed under the terms
of this Agreement, including the nondiscriminatory provisions set forth in this
Agreement, and in the subsequent operation of rail service.
§ 20. The Applicant shall be responsible for all damage to life and property due to ifs activities
and those of its subcontractors, agents or employees, in connection with the work
perfom~ed under this Agreement and subsequent operation of rail service. Further, it is
r-
expressly understood that the Applicant shall indemnify, defend and hold harmless the
Commonwealth of Virginia, the Department of Rail and Public Transportation, its
officers, agents, and employees from and against all damages, claims, suits, judgements,
expenses, actions and costs of every name and description, arising out of or resulting
from any negligent act or omission in the performance by the Applicant or its
subcontractors of the work covered by this Agreement and the subsequent operation of
9 P163
rail service. Acceptance of the work by the Department of Rail and Public
Transportation shall noti waive any of the rights of the Department contained in this
Section nor release or absolve the Applicant from any responsibilities or duties contained
in the Agreement.
§ 2l. The Applicant shall maintain all books, documents, papers, accounting records, and any
other evidence, showing actual time devoted and supporting the cost incurred. Such
books, documents, papers, accounting records, etc., shall be consistent with commonly
accepted business accounting practices. Such information shall be made available at
their respective offices at all reasonable times during the Agreement period and for a
period of five (5) years from the date of final payment by the Department. to the
Applicant for audit and inspection. Copies of such information shall be famished t:o the
Department upon request.
§ 22. 13o member, officer, or employee of the Virginia Department of Rail and Public
Transportation, during his tenure or one-year thereafter, shall have any interest, direct or
indirect, in this Agreement.
§ 23. This Agreement shall, in all respects, be governed by the laws of the Commonwealth of
Virginia.
§ 24. If any term or provision of this Agreement is determined to be invalid, illegal or
unenforceable, it shall not. affect the legality of validity or enforceability of any other part
of this Agreement, and the remaining parts of this Agreement shall be binding upon the
parties to this Agreement.
§ 25. This Agreement, when properly executed, shall be binding upon the parties hereto and
their respective successors and assign.
10 Pisa
M TESTIMONY WHEREOF, the parties have caused this Agreement to be executed in
triplicate, each by its duly authorized officers, all as of the day, month, and yeaz hereinabove first
written:
COMMONWEAI_,TH OF VIRGINIA
Department of Rail and Public
Transportation
w ucker
Director
City of Danville, Virginia
W[ ESS
Executive Assistant
NA E
Seal
v t t'~ ~ ~~
WITNESS
Deputy Clerk
Seal
PRINTED NAMF_ AND TITLE
Jerry L. t~+altney
City Manager
Pittsylvazria County, Virginia
NAME ~~ //,
PRINTED NAME AND TITLE
William D. Sleeper
County Administrator
Tbc form of this Agreement has been approved by the Office of the Attorney General.
The form of this Agramcm has been appiovtd by the Fiscal Division of the Virginia ihpanmem of Transportation.
~ ~ P165
PITTSYLVANIA COUNTY
Board of Supervisors
EXECUTIVE SUMMARY
PITTSYLVANIA COUNTY
Board of Supervisors
EXECUTIVE SUMMARY
AGENDA TITLE:
Report on Swedwood Kail Contract
AGENDA llATE:
02-21-2012
ITEM NUMBER:
23
SUBJECT/PROPOSAL/REO U EST:
Report from County Administrator
STAFF CONTACT(S):
Mr. Sleeper
ACTION:
Yes
CONSENT AGENllA:
ACTION:
ATTACHMENTS:
Yes
REVIEWED BY:
INFOKMATION:
INF012MATION:
BACKGROUND:
The Board of Supervisors approved a repayment schedule to the Virginia Department of Transportation and Rail at
their regular meeting on Monday, February 6, 2012 and requested that a report on the rail contract be submitted to
the Board of Supervisors.
DISCUSSION:
Attached hereto, is a report concerning the Swedwood rail project, how it was developed, and the current liabilities
and burdens of those contracts.
RECOMMENDATION:
Staff submits this to the Board of Supervisors for their review and consideration.
P127
PITTSYLVANIA COUNTY
VIRGINIA
c' ~ \
William D. Sleeper ~
County Administrator o ~ ~t
P.O. Box 426 -~ t
Chatham, Virginia 24531 y w ~ `;N
e-mail: dsleeperCpittgov.org s 17671
To: Otis S. Hawker, Assistant County Administrator
From: Henry Boswell, Jr., Chief Animal Control Officer
Date: Feb 6, 2012, Subject: Animal Control Activity Report
Phone (434) 432-7710
Fax (434) 432-7714
Gretna/Hurt (434) 656-6211
ANNUAL REPORT
During the period of January 1, 2011 through, December 31, 2011, the Animal Control Officers
responded to_4514_calls as per Henry Boswell, Chief Animal Control Officer, resulting in the
following:
Description Number Remarks
Animals taken into custod 2432
Dogs 1089
Cats 1234
Other 99 Deer, fox, goat, goose, rooster, skunk, grd. hog, raccoon, opossum
Animals on hand at month end 247
Aniroals dis atched 675 Do s; Cats; Others
Licenses checked 1255
Court cases 360
Summons 380
Animals Ado ted 55
Animals returned to owners 118
Cats taken to the Humane Socie 1096
Animals Transferred 374 FC -319, LAP-1 , DAHS- 9 ,MHC-41, AOA- 4
Inured animals icked u 39
Animals found in tra s 1058
Ex osures: Human/Saliva 21
Ex osures: Do s/Cats/VVildlife 4
Do Bites 72
Cat Bites 9
Cruel Checks 10
Well-being Checks 190
Cat/Do Fi hts 26
Investi ated killin s b do s/cats 19
Investi ate killin s b Co otes 1
If you have any questions concerning this, please do not hesitate to contact me.
cc: William D. Sleeper, County Administrator
Pts~
PI'I"~SYLVP~1vIA C®U11T'~Y
VIRGINIA
~,~SY LV~
C~ y r N/
William D. Sleeper ~~ ' 9r Phone (434) 432-7710
County Administrator o ~ ~ ~ ~, o
.l Fax (434)432-7714
P.O. Box 426 .a ~ ~~ `9 G
Chatham, Virginia 24531 Y ti ~ ~ y r T 7~ ~7~- 2lln T
e-mail: dsleepetCpittgov.org ~ n67 Y A1xiV VAL 1\1;r~A1
Ti_ ..P
MEMORANDUM
To: Otis S. Hawker, Assistant County Administrator
From: Henry Boswell, Jr., Chief Animal Control Officer
Date: February 6, 2012
Subject: Conservators of the Peace
Solid Waste Monitoring Report
The Animal Control Officers whom have been appointed to the position of Conservators oY the Peace
monitoring solid waste sites in Pittsylvania County, as per Henry (Pete) Boswell, Chief Animal Control
Officer, for the period of January 1, 2011 through December 31, 20] 1.
Description Number Remarks
Total hours monitored 124.5
Vehicles enterin sites 1082
Vehicles checked 185
Summons' issued 5
Court Cases 3
Convictions 4
If you have any questions concerning this, please do not hesitate to contact me.
cc: William D. Sleeper, County Administrator
P168
CLOSED
MEETING
P169
ADJOURNMENT
P170