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HomeMy WebLinkAbout2011-413 Finance - OC Board of Education - CW Stanford Middle School Improvements - Project Completion & Agency Agreement - a-ali G a- r' FED 25 ?) PROJECT COMPLETION AND AGENCY AGREEM T By THIS PROJECT COMPLETION AND AGENCY AGREEMENT is dated as of January 27, 2011, and is entered into by and between ORANGE COUNTY, NORTH CAROLINA, as principal (the "County"), and THE ORANGE COUNTY BOARD OF EDUCATION, as agent (the "School Board"). WITNESSETH: The County and the School Board have agreed upon a plan for the acquisition and construction (the `Project) of renovations and improvements to C.W. Stanford Middle School as part of a program of improvements to be funded through the Countys participation in the federal"qualified school construction bond'program. As part of such plan of financing, the County has executed and delivered a Financing Agreement and Deed of Trust (the "Financing Agreement") for the benefit of Branch Banking and Trust Company (the `Bank"), providing for the financing of the Project. As part of the plan of financing, the School Board has conveyed title to the C.W. Stanford Middle School property to the County, and then leased back the property pursuant to a Lease dated as of January 27, 2011 (the`Leasd). The County desires to designate the School Board as its agent to carry out the Project. The School Board is willing to accept such an appointment pursuant to the terms of this Agreement, to act as the Countys agent and to carry out the Project. NOW, THEREFORE, for and in consideration of the mutual promises herein contained and for other valuable consideration, the parties agree as follows: 1. DEFINITIONS. Capitalized terms used in this Agreement and not otherwise defined have the meanings assigned in the Financing Agreement. All references to the Bank include the Banks successors and assigns pursuant to the Financing Agreement and the transactions contemplated by the Financing Agreement. 2. APPOINTMENT; ACCEPTANCE. The County appoints the School Board as its agent to carry out all phases of the Project. The School Board, as the County's agent, assumes all the County's rights, duties and responsibilities regarding such matters, except as limited in this Agreement. The School Board will appoint no further agent to assume such rights or carry out such duties and responsibilities without the prior written consent of the County and the Bank. 3. CONTRACTS. The School Board, with the County's approval, may enter into any purchase order or contract with respect to the Project in the School Board's name. Alternatively, the County may require that any such purchase orders or contracts be entered into by the County in its own name or be entered into by the County.and the School Board jointly. All contracts must comply with the public procurement laws and any other State laws applicable to either the School Board or the County, as appropriate, with regard to entering into such contracts. The School Board must provide that contractors provide bonds, insurance coverages and contract assignments that comply with the requirements of North Carolina law. 4. RIGHTS AND RESPONSIBILITIES FOR THE PROJECT. The School Board, as the County's agent, will be responsible for carrying out the Project, and the School Board will have all rights to supervise the Project. The County and its representatives and agents will have the right to enter upon the Project sites and inspect the Project work from time to time during construction and after the completion of construction, and the School Board will cause any vendor, contractor or sub-contractor to cooperate with the County and its representatives and agents during such inspections. No right of inspection or approval granted in this Section will be deemed to impose upon the County any duty or obligation whatsoever to undertake any inspection or to make any approval. No inspection made or approval given by the County will be deemed to impose upon the County any duty or obligation whatsoever to identify or correct any defects in the School or to notify any person with respect thereto, and no liability will be imposed upon the County, and no warranties (either express or implied) are made by the County as to the quality or fitness of any improvement, any such inspection and approval being made solely for the County's benefit. 5. SCHOOL BOARD'S RIGHT TO ENFORCE CONTRACTS. For so long as the School Board is not in default of any of the provisions of this Agreement and the Lease, the School Board will have the right to enforce in its own name or in the County's name purchase orders or contracts entered in the County's name or the School Board's name for the Project; provided however, that if the School Board is in default of any provisions of this Agreement or the Lease for a period of thirty days after being notified by the County of such default without cure, the County will have the right to terminate this Agreement and assume all the School Board's responsibilities for the Project. In the event of such a termination of this Agreement, the School Board will assign any and all right, title and interest to any and all contracts relating to the Project, 2 including but not limited to any architect agreements, any and all engineering agreements, any and all construction agreements, and any and all plans, specifications and other drawings or documents prepared or to be prepared for the Project. The School Board agrees to reimburse to the County for any and all costs, expenses, and damages incurred by the County in the assumption of the rights and responsibilities of the School Board due to such event of default without cure, and to indemnify and hold the County harmless for any and all claims for damages by others related to such event of default without cure. Any assignment by the County of any of its rights under the Financing Agreement will not prevent the County from asserting such rights and powers in its own behalf. 6. DISBURSEMENTS FOR PROJECT COSTS. All the proceeds to be made available to the County pursuant to the Financing Agreement are being paid to the County by the Bank as of the date of the initial execution and delivery of the Financing Agreement. The School Board will request funds from the County for the payment of Project Costs, and will provide the County with the necessary information supporting a requisition, such as an architect's payment certification. The County will have the right to obtain such additional evidence as it deems appropriate to determine the accuracy of the representations set forth in the form of requisition and the propriety of payment. The School Board will provide the County with such information in the School Board's possession as the County may request. 7. APPLICATION OF CASUALTY INSURANCE PROCEEDS. Notwithstanding any provision of this Agreement, the County retains the sole power to control and direct the application and distribution of proceeds of casualty insurance applicable to the Facilities, as provided in the Financing Agreement. 8. RESERVATION OF RIGHTS. This Agreement is not to be construed in any way as delegating or limiting the County's rights hereunder or under the Financing Agreement, except as expressly provided herein. 9. CONSIDERATION. The County and the School Board are undertaking their mutual obligations under this Agreement in partial consideration for, and in partial fulfillment of, their agreement to carry out the Project. [The remainder of this page has been left blank intentionally.] 3 IN WITNESS WHEREOF, the parties have caused this Project Completion and Agency Agreement to be executed in their corporate names by their duly authorized officers, all as of the date first above written. ORANGE COUNTY, NORTH CAROLINA By: Printed name: Title: THE ORANGE COUNTY BOARD OF EDUCATION By: Printed name: Tony M. McKnight Title: Board of Education Chair This instrument has been preaudited This instrument has been preaudited in the in the manner required by The Local manner required by the School Budget and Government Budget and Fiscal Control Act. Fiscal Control Act. Cal- &�7 �J Clarence Grier [name] -Lo Finance Officer Finance Officer Orange County, North Carolina The Orange County Board of Education [Project Completion and Agency Agreement dated as of January I1, 2011] 4 ao Sanford 209 Lloyd St., Suite 350 Holshouser LLP Carrboro, NC 27510 , February 22, 2011 [ [� John L. Roberts, Esq. k 2 2011 Orange County Attorney Post Office Box 8181 By Hillsborough, NC 27278 Orange County's 2011 OSCB Financing—Original Documents for County Files Dear John: I am sending along two original documents from this financing for your attention and the County's files, as follows: 1. Original signed copy of the "Project Completion and Agency Agreement." A copy of this document will be in the books of collected financing documents (which I expect to deliver next week), but I thought you might want to have this one original copy held apart. 2. Original signed copy of the lease of the school property (back to the school board). The copy of this item that was delivered to me for the closing didn't have the school board signatures documents notarized. The enclosed copy is now an original, fully-executed and notarized copy. I plan to put copies of this unrecorded lease in the financing volumes. I will leave it to you as to whether you want to go ahead and have this lease recorded, or if you want to send it over to the schools to record (if they want to). The recording of the lease is really for the benefit of the lessee, so I suppose my inclination is to suggest that you send the original lease back to Mike Parker or someone at the schools with a suggestion that they have the lease recorded. Please let me know if you want to talk about any of this. See you soon. V tru yours, Robert M. Jessup Jr. Telephone 919/933-9891 Fax 919/933-9893 Bobjessupgaol.com