INTERIM AGREEMENT This INTERIM AGREEMENT ("Interim Agreement") dated this __ day of February, 2014, is between the CITY OF WILLIAMSBURG, a Virginia Municipal Corporation ("Owner") and DANIEL & COMPANY, Inc., a Virginia Corporation (“PPEA Contractor”), doing business in Virginia, whose Identification Number (FEIN) is 54-1798128, (Owner and PPEA Contractor may be referred to herein individually as a “Party” or together as the “Parties”) and is binding on the Parties from the date performance begins. WHEREAS, Owner contemplates development of the following Project1 identified as: Project Title: Stryker Center The Project consists of Design and Construction of an approximately 15,000 sf. building located on property owned by the City of Williamsburg containing 2.346± acres located at 412 N. Boundary Street, Williamsburg, Virginia (Tax Map No. 465-0A-00- 006). Said construction shall include demolition of the existing Stryker Building currently located on the property and erection of a new building to contain elements as provided in the City of Williamsburg Stryker Center Concept, dated September 30, 2013, prepared by Architect and attached as Attachment A. The design for said building shall be substantially similar to that shown in the design modifications submitted to the Owner on December 2, 2013, and presented to the Williamsburg City Council on December 3, 2013, by Architects and attached as Attachment C, except for any design modifications made during the term of this Interim Agreement as approved by Owner. WHEREAS, PPEA Contractor submitted its PPEA Proposal, attached as Attachment B, on May 15, 2013, under the Public-Private Education Facilities and Infrastructure Act of 2002 (the “PPEA”), Va. Code § 56-57.1, et seq., in order to form a public-private effort to provide Owner certain design, permitting, demolition, and construction services in connection with the Project; and WHEREAS, Owner had received a prior unsolicited proposal on February 1, 2013, (the “Initial Proposal”) and, as required by applicable law, on or about February 15, 2013, Owner advertised receipt of such Initial Proposal and invited any competing proposals to be submitted to it by April 12, 2013 for consideration, which deadline was subsequently extended to May 15, 2013. On or about October 1, 2013, Owner requested that all qualifying proposers revise their designs and resubmit revised designs to the Owner by or before November 22, 2013, which deadline was subsequently extended to December 2, 2013. On December 3, 2010, Owner reviewed revised designs received from the qualifying proposers pursuant to Owner’s advertised invitation; 1 Initially capitalized terms used in these recitals shall have the meaning given them in Paragraph 2, below. Page 1 of 20 WHEREAS, Owner subsequently determined that the PPEA Contractor’s Proposal (the “Qualifying Proposal”), attached as Attachment B, and its revised design, attached as Attachment C, qualified and advised PPEA Contractor that Owner intended to proceed with negotiations on an interim agreement for the design and construction of the Stryker Center on December 12, 2013; and WHEREAS, Owner and PPEA Contractor desire to commence the Services and Work, on the terms and subject to the conditions set forth in this Interim Agreement, while the Parties negotiate a definitive Comprehensive Agreement for PPEA Contractor's full completion the Project (the "Comprehensive Agreement"). NOW, THEREFORE, in consideration of the Recitals set forth above, and good and valuable consideration as set forth below, the Parties agree as follows: 1. Representations and Warranties. Owner and PPEA Contractor each represents to the other that the following representations and warranties given by it are true and correct to the best of its knowledge, information, and belief, and shall remain so throughout the term of this Interim Agreement. A. Owner’s Representations and Warranties. Owner hereby represents and warrants to PPEA Contractor as follows: (1) Owner is a municipal corporation duly chartered and operating under the laws of the Commonwealth of Virginia and has full power, right and authority to execute, deliver and perform its obligations under, in accordance with and subject to the terms and conditions of this Agreement. (2) Each person executing this Agreement on behalf of Owner is duly authorized to execute each such document on behalf of Owner. (3) Neither the execution and delivery by Owner of this Interim Agreement and any other documents executed concurrently herewith to which Owner is a party, nor the consummation of the transactions contemplated hereby or thereby, is in conflict with or will result in a default under or violation of any other agreements or instruments to which it is a party or by which it is bound. (4) There is no action, suit, proceeding, investigation or litigation pending and served on Owner as of the date of this Agreement which challenges Owner’s authority to execute, deliver or perform, or the validity or enforceability of this Agreement and the other related documents to which Owner is a party, or which challenges the authority of Owner official executing this Agreement or the other related documents, and there is no pending, pending and unserved, or threatened action, suit, proceeding, investigation or litigation with respect to such matters of which Owner is aware. Page 2 of 20 (5) With respect to this Interim Agreement, Owner is in material compliance with all laws, regulations and ordinances applicable to Owner or its activities in connection with this Interim Agreement and Attachments . (6) Owner certifies that all material representations, information and data provided in support of or in connection with the Project are true and correct. (7) These representations and warranties of Owner contained herein shall survive expiration or termination of this Interim Agreement. B. PPEA Contractor’s Representations and Warranties. PPEA Contractor hereby represents and warrants to Owner, as of the date of this Interim Agreement, as follows: (1) PPEA Contractor represents that Daniel & Company, Inc., does business in Virginia, is licensed in Virginia as a Class A contractor (License No. 2705.034063A) and in signing this Interim Agreement as well as such Comprehensive Agreement as may be entered into between the Parties, is acting on behalf of itself and in so doing, has full power and authority to bind itself to the terms thereof. (3) PPEA Contractor has taken or caused to be taken all requisite action to authorize the execution and delivery of, and the performance of its obligations under this Interim Agreement and Attachments to which PPEA Contractor is a party. (4) Each person executing this Interim Agreement or any other related document on behalf of PPEA Contractor has been or will at such time be duly authorized to execute each such document on behalf of PPEA Contractor. (5) Neither the execution and delivery by PPEA Contractor of this Interim Agreement and Attachments nor the consummation of the transactions contemplated hereby or thereby, is in conflict with or will result in a default under or a violation of the governing instruments of PPEA Contractor or any other agreements or instruments to which it is a party or by which it is bound. (5) There is no action, suit, proceedings, investigation or litigation pending and served on PPEA Contractor which challenges PPEA Contractor’s authority to execute, deliver or perform, or the validity or enforceability of this Interim Agreement and the other related documents to which PPEA Contractor is a party, or which challenges the authority of PPEA Contractor official executing this Agreement or the other related documents; and there is no pending, pending and unserved, or threatened action, suit, proceeding, investigation or litigation with respect to such matters of which PPEA Contractor is aware. Page 3 of 20 (6) PPEA Contractor is in material compliance with all laws, regulations and ordinances applicable to PPEA Contractor or its activities in connection with this Interim Agreement and the other related documents. (7) PPEA Contractor certifies that all material representations, information and data provided in support of, or in connection with, the proposal for the Project are true and correct. (8) PPEA Contractor acknowledges that Owner is prohibited by law from undertaking any indemnity obligations to PPEA Contractor. (9) The representations and warranties of PPEA Contractor contained herein shall survive expiration or termination of this Interim Agreement. 2. Definitions. The following definitions apply to this Agreement. Capitalized Terms not defined herein shall have the meanings as defined in the PPEA, the Guidelines, and PPEA Contractor’s Proposal as modified by Attachment C to this Agreement. A .“Codes and Standards” means all the following standards, permits and approval: the City of Williamsburg road and utility standards; The Virginia Uniform Statewide Building Code; City of Williamsburg site plan design requirements and procedures in the City of Williamsburg zoning ordinance, Architectural Review Board demolition approval, demolition permit, land disturbing permit and bond, and right-of- way permit if site development extends into a public right of way, as well as all practices and the level of care and skill that, as of the date and during the term of this Interim Agreement, is customary in the relevant design and engineering professions in the Commonwealth of Virginia for similar projects . B. “Architect” means the architectural firm of Stemann-Pease Architecture, LLC. C. “Design Professionals” or “Design Consultants” means the Architect, engineer(s), and consultant(s) engaged by PPEA Contractor to provide Services relating to the Project and the firms that employ them. The engineers designated in the Proposal are The Structures Group (Structural Engineer), LandTech Resources Inc. (Civil Engineer) and Dunlap & Partners (Mechanical, Electrical and Plumbing Engineer), along with the other consultants shown on page 70 of the Volume 1 of Attachment B. In the event PPEA Contractor desires to change Design Professionals, approval must be obtained from Owner, which approval may not be unreasonably withheld, however, PPEA Contractor may not change the Architect for the project. D. “Facility” means the Stryker Center, as more specifically described in the Proposal. E. “Plans” means Project-specific drawings prepared by the Design Professionals which describe the Project in sufficient detail to confirm compliance with applicable Codes and Standards and for PPEA Contractor to perform the Work under a Comprehensive Agreement between Owner and PPEA Contractor in accordance with the Page 4 of 20 terms and conditions thereof. Construction documents for the Project itself are outside of this definition and will be provided as part of the Comprehensive Agreement. F. “Project” means the demolition, site development, design, and construction of the Facility as contemplated by the Proposal, as modified by the revised conceptual design submitted by Architects on December 2, 2013. The term “Project” includes both the entirety of the Project and/or any part or portion thereof. G. “Proposal” means PPEA Contractor’s Proposal dated May 15, 2013, attached hereto as Attachment B, as modified by Attachment C, revised designs submitted by Architects, dated December 2, 2013. H. “Services” for purposes of this Interim Agreement means all professional design and engineering services as needed for the construction of the Facility and preparation of all submissions and obtaining all permits and approvals necessary to proceed with the Project in accordance with the Plans as defined herein below, but shall not include construction documents or contract administration services, which the Parties contemplate will be addressed in and provided as part of the Comprehensive Agreement. I. “Site” means property owned by the City of Williamsburg, which property is the site of the current Stryker Building, containing 2.346 acres (Tax Map Parcel Number 465-0A-006) and which property is located at 412 N. Boundary Street in the City of Williamsburg. J. “Work” means (i) the demolition of the existing Stryker Building located at 412 N. Boundary Street in the City of Williamsburg in accordance with the demolition scope of work in the Demolition and Site Development Scope of Work dated January 27, 2014, including demolition allowances and attached hereto as Attachment E and (ii) site development work in accordance with the site development allowances contained in the Demolition and Site Development Scope of Work in Attachment E. K. The “Guidelines” means and refers to the document titled, Public-Private Education Facilities and Infrastructure Act of 2002, Model Guidelines, Rev. Sept. 2007,” attached hereto as Attachment D. 3. PPEA Contractor’s Responsibilities. A. Under this Interim Agreement, PPEA Contractor, using the Design Professionals as needed, shall provide all Services necessary to enable Owner to proceed with construction of the Project, all as more particularly set forth in the Proposal. B. PPEA Contractor shall provide the Services in accordance with the Interim Agreement schedule attached as Attachment G. C. Owner and PPEA Contractor shall use their best efforts to maintain the Interim Agreement Schedule, which can be modified by mutual written agreement of the Parties Page 5 of 20 as circumstances warrant and each Party agrees to act in good faith with respect to schedule modifications requested by the other Party and not to unreasonably withhold consent thereto. D. PPEA Contractor shall procure and throughout the term of this Interim Agreement shall maintain insurance in accordance with Articles 9 and 10(C) below. E. Owner does not provide to PPEA Contractor any warranty, express or implied, regarding any services or design performed or that may be performed by Owner, if any, or PPEA Contractor’s consultants, agents or employees for the Project. Subject to Paragraph 11, below, PPEA Contractor shall be responsible for all acts and omissions of the Design Professionals. 4. Owner’s Responsibilities. A. Owner shall provide a proposed form of Comprehensive Agreement in sufficient time to avoid delay to the Project, and the Parties shall negotiate in good faith the terms of the Comprehensive Agreement. 5. Interpretation and Intent. A. This Interim Agreement forms the entire Agreement between Owner and PPEA Contractor with respect to the Project. No oral representations or other agreements have been made or entered into by the Parties except as specifically stated in this Interim Agreement. B. Execution of this Interim Agreement shall not bind Owner to engage or retain PPEA Contractor for any additional services through a subsequent Interim Agreement, a Comprehensive Agreement or any other contract, nor shall it bind PPEA Contractor to enter into any other agreement with the Owner, including without limitation, a subsequent Interim Agreement, the Comprehensive Agreement, or any other contract. 6. Contract Price. If Owner elects to proceed with the Project after acceptance of PPEA Contractor’s Schedule of Values, a Lump Sum Price shall be set forth in a Comprehensive Agreement between Owner and PPEA Contractor in accordance with the PPEA and the Guidelines, which shall include the design phase price, and demolition and site development price set forth in Paragraph 7. 7. Interim Agreement Price and Payments. A. Design Phase Price: In consideration of its design services under this Interim Agreement, Owner shall pay PPEA Contractor the sum of THREE HUNDRED SIXTYAND 00/100 DOLLARS ($360,000.00) (the “Interim Agreement Design Phase Price”) payable as provided in subsection E below. The Interim Agreement Design Phase Price is a not-to-exceed amount that will be billed and paid based on percentage of Page 6 of 20 completion of the Services identified as Design Fees on Attachment E and F. In the event the Parties enter into a Comprehensive Agreement, any amounts paid pursuant to this Interim Agreement shall be credited against PPEA Contractor's Proposal Price for purposes of negotiating the Lump Sum Price to be contained in the Comprehensive Agreement if both Parties agree to enter into the Comprehensive Agreement. B. General Conditions Price: In consideration of the general conditions services, that is, those services necessary for the design phase, to prepare the site for demolition and site development work, more specifically described in Attachments E and F, Owner agrees to pay to PPEA Contractor the sum of ONE HUNDRED FORTY NINE THOUSAND FIVE HUNDRED and 00/100 DOLLARS ($149,500.00) (the “General Conditions Price”), said amount to be a not-to-exceed amount that will be billed and paid based on completion of the services and payable as provided in subsection E below. Additionally, Owner will reimburse PPEA contractor for the cost of obtaining the Performance and Payment Bond provided for in subsection 10(F) below, and shall reimburse PPEA Contractor the costs paid for any license, as well as for insurance and permit fees required for the Project, the estimated cost for which is shown on Page 2 of the Schedule of Values (Attachment F). C. Demolition Price: In consideration of the demolition of the existing Stryker Building as provided in Article 8 and Attachment E and F, Owner will pay to PPEA Contractor the sum of TWO HUNDRED ONE THOUSAND EIGHT HUNDRED AND 00/100 DOLLARS ($201,800.00) (the “Demolition Price”), said amount to be billed and paid based on completion of services and payable as provided in subsection E below. The Parties understand that the Demolition Price contains allowances which are estimates based on the conditions known by the Owner and PPEA Contractor at the time of this Interim Agreement, and it may be necessary to adjust allowances based on actual costs once Work begins. If the actual cost of performing specific items of work shown as an allowance in the Schedule of Values (Attachment F) exceeds the allowance provided for in the Schedule of Values, Owner must approve said adjustment in advance of PPEA Contractor performing the work. Any amounts paid pursuant to this provision of this Interim Agreement shall be credited against PPEA Contractor’s Proposal Price for purposes of negotiating the Lump Sum Price contained in the final Comprehensive Agreement if both Parties agree to enter into the Comprehensive Agreement. D. Site Development Price: In consideration of services developing the site after demolition of the existing Stryker Building performed by PPEA Contractor as provided in Article 8 and Attachments E and F, Owner will pay to PPEA Contractor the sum of THREE HUNDED SEVENTY FIVE THOUSAND FIVE HUNDRED and 00/100 DOLLARS ($375,500.00) (the “Site Development Price”), said amount to be paid based on completion of services and payable as provided in subsection E below. The Parties understand that the Site Development Price contains allowances which are estimates based on the conditions of the site known by the Owner and PPEA Contractor at the time of this Interim Agreement, and that it may be necessary to adjust allowances based on actual cost once Work begins. If the actual cost of performing specific items of work shown as an allowance on the Schedule of Values (Attachment F) exceeds the allowance Page 7 of 20 provided for in the Schedule of Values, Owner must approve said adjustment in advance of PPEA Contractor performing the work. Any amounts paid pursuant to this provision of this Interim Agreement shall be credited against PPEA Contractor’s Proposal Price for purposes of negotiating the Lump Sum Contract Price contained in the final Comprehensive Agreement if both Parties agree to enter into the Comprehensive Agreement. E. Progress Payments: Beginning on the calendar month next following the month when all Parties have signed this Interim Agreement, PPEA Contractor shall submit to Owner on the fifth (5th) day of each month, PPEA Contractor’s Application for Payment for Services and/or Work rendered under this Interim Agreement since the previous application for payment, together with reimbursement of all permitting fees and costs advanced by PPEA Contractor or the Design Professionals to State and/or Local Permitting Agencies pursuant to subsection B above. Applications for Payment shall be based on the agreed Schedule of Values attached hereto as Attachment F, along with any adjustments necessary for those items shown as allowances on Attachment F. Applications for payment shall be in form and level of detail as reasonably required by Owner. Owner shall make payment within thirty (30) days after Owner’s receipt of each properly submitted and accurate Application for Payment. 8. Demolition and Site Work. A. Owner and PPEA Contractor agree that, in order to expedite the Project, the Parties agree to commence demolition of the existing building on the site and certain site development work pursuant to and during the terms of this Interim Agreement. The Parties also agree that, if the design services pertaining to such demolition and site development work are sufficiently completed prior to execution of the Comprehensive Agreement to enable site development work to proceed, Owner may request PPEA Contractor to proceed with site development work for the new construction, including, but not limited to preparing the site for the new construction, installation of storm water management systems and sanitary sewer and water lines during the interim phase of the project. The Parties understand that initiation or completion of certain elements of the work contemplated herein may not be possible until such time as the design professionals have substantially completed their studies and designs for the new construction. In that event, Owner and PPEA Contractor shall negotiate in good faith and prepare and execute any additional agreements, which shall include, without limitation, the price for such work, necessary to allow said site development work to proceed. Demolition shall commence according to the schedule contained in Attachment G, and shall be completed no later than 65 days after commencement. Demolition and possible site development work shall be performed in accordance with Attachment E, “Demolition and Site Development Scope of Work”. B. Demolition shall include all parts of the existing building, including the complete removal of the walls and floor of the basement of the existing building. PPEA contractor agrees to recycle, or cause to be recycled, as much of the material from the Page 8 of 20 existing structure as reasonably possible. The Parties agree to document the same for purposes of future LEED Certification of the project. C. PPEA Contractor shall supervise and direct demolition and site development work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the demolition in accordance herewith. PPEA Contractor shall be solely responsible for the means, methods, techniques, sequences and procedures used in performing the work. PPEA Contractor shall ensure that upon completion of the demolition, the site is properly prepared for commencement of the construction phase of the Project, and shall ensure that the site is properly filled using appropriate fill material of good and sufficient quality to allow construction of the project on said fill, compacted to allow for immediate construction of the project. D. PPEA Contractor shall take reasonable care not to damage structures and facilities adjacent to the site of demolition, including the plaza, police station, and also including adjacent roadways, sidewalks, and utilities not included in the demolition. PPEA Contractor shall repair or replace facilities damaged by demolition activities to the satisfaction of the Owner. E. PPEA Contractor shall keep a superintendent on site during all times in which demolition and site development work is occurring. Superintendent shall be PPEA Contractor’s representative at the site and shall have authority to act on behalf of PPEA Contractor. All communications given to the Superintendent shall be as binding as if given to the PPEA Contractor. Superintendent shall ensure that the site is kept secure and unauthorized persons are not permitted on-site during demolition. F. PPEA Contractor shall promptly and properly dispose of all debris, according to industry standards and in compliance with all federal, state and local laws, including any applicable environmental regulations. In no event shall debris remain on site once demolition is completed. Any hazardous materials found in the building shall be removed and disposed of in accordance with all regulatory and environmental requirements, utilizing all necessary safety precautions as are usual in the industry. PPEA Contractor shall obtain any permits necessary for the removal or disposal of any hazardous materials. G. PPEA Contractor shall provide competent, suitably qualified personnel to perform the demolition and site development work as required herein. Contractor shall at all times maintain good discipline and order at the site. Except in connection with the safety or protection of persons or work at the site or adjacent thereto, all work shall be performed between the hours of 7:00 am and 7:00 pm. H. PPEA Contractor shall furnish all equipment, labor, transportation, equipment and machinery, tools, appliances, fuel, power, water, and sanitary facilities and all other facilities and incidentals necessary for the execution and completion of the Work, which shall be in good repair and adequate to perform the Work. Page 9 of 20 I. All demolition and site development work shall be performed in a safe, good and workmanlike manner. J. Owner may require weekly meetings with the Superintendent and Owner’s representatives to discuss the progress of the demolition and to resolve any problems encountered during the demolition. During the course of demolition and site development work, Owner may inspect site with Superintendent upon request. K. Owner has provided to PPEA Contractor a third party assessment of the asbestos and hazardous materials contained in the existing Stryker Building, dated April 14, 1989. Owner provides no warranties, expressed or implied as to the quality or correctness of the data contained therein, but provides the assessment to the PPEA Contractor for informational purposes only. Owner has also provided to PPEA Contractor surveys and other geotechnical studies on the site, and PPEA Contractor acknowledges that it has received those documents. 9. Insurance. At all times during the performance of the work under this Agreement, PPEA Contractor shall take out and maintain each of the following insurances with insurance companies reasonably satisfactory to Owner: A. Workers’ Compensation and Employers’ Liability Insurance for all of its employees engaged in work on the Project in an amount not less than the minimum required by Va. Code §§2.2-4332 and 65.2-100 et seq., and, in case any of such work on the Project is sublet, PPEA Contractor shall require each subcontractor similarly to provide Workers’ Compensation and Employers’ Liability Insurance for all of the latter’s employees to be engaged in such work. Upon written request by Owner, PPEA Contractor shall submit on the form provided by Owner a Certificate of Coverage verifying Workers’ Compensation. PPEA Contractor shall likewise obtain a Certificate of Coverage for Workers’ Compensation coverage from each subcontractor prior to awarding the subcontract and maintain in on-site files. B. Commercial general liability insurance to include Premises/ Operations Liability, Products and Completed Operations Coverage, Independent PPEA Contractor’s Liability, Owner’s and PPEA Contractor’s Protective Liability, and Personal Injury Liability, which shall insure it against claims of personal injury, including death, as well as against claims for property damage, which may arise from operations under this Agreement, whether such operations be by itself or by any subcontractor, or by anyone directly or indirectly employed by either of them. The amounts of general liability insurance shall be not less than $2,000,000.00 per occurrence and $2,000,000.00 aggregate combined limit. Owner, and its officers, employees and agents, shall be named as an additional insured with respect to the Services being performed by PPEA Contractor. Page 10 of 20