Between the Board of Supervisors of Fauquier County, (“the Board”),

Beverly Carter and Frederick A. Terry, Jr., as Executors of the Will of Paul Mellon, deceased (the “Executors”).


Re:      Northern Fauquier Community Park and Sports Complex Mitigation of Soils Problems and Execution of the Landscape and Park Amenities Plan dated May 1, 2007 and Revisions Through March, 2008 (the “Landscaping Plan”) attached hereto as exhibit “A.” 

The following sets forth the provisions of the Memorandum of Understanding agreed to by the Board and the Executors to complete the tree and shrub installation under the Landscaping Plan in accordance with the desires of the Executors.

 1.  The Executors and the Board acknowledge and agree that the Board has entered into a separate Agreement with its Contractor, S.W. Rodgers, to provide for the completion of the above-reference Landscape and Park Amenities plan.  The Agreement is attached hereto as Exhibit “B.” 

 2.  The Executors and the Board further acknowledge and agree that the performance of this agreement by Rodgers will satisfy the requirements of the Distribution Agreement with respect to the installation of trees and shrubs.  The Agreement between the Board and Rodgers provides that Rodgers will not be responsible for long-term settlement within the trenches.  The Board will, as part of its maintenance responsibility, address this settlement in an appropriate fashion.

 3.  The Executors and the Board agree that the Board will provide to the Executors and EDA by April 30, 2008 specific comments and concerns regarding the draft “Maintenance Specification” previously prepared by EDA and submitted to the Board.  Thereafter, EDA and the Board shall work together in good faith to agree upon, and to memorialize in writing, a reasonable maintenance specification for the maintenance of the Sports Park Facility, including the Landscaping.

 4.  The Executors hereby approve the release of any and all funds needed to reimburse the Board for its final payment to Miller Brothers, Inc. under its separate construction contract for the construction of certain buildings on the Site.  The Executors agree that no instructions to withhold funds shall issue hereafter except with respect to specific items of work (to be itemized by the Executors) that have not been completed in accordance with this Agreement (together with specific reasons describing such failures).   EDA will promptly review and reasonably approve all requests for payment under the Construction Contract submitted by Rodgers, as well as other requests for payment submitted by any other contractors under their respective contracts.

 5.  Except as specifically modified hereby, the Distribution Agreement shall remain in full force and effect.  The terms, covenants and conditions contained in this Agreement shall bind and inure to the benefit of the parties hereto and their respective successors and assigns.

 6.  This Memorandum of Understanding shall be governed by the laws of the Commonwealth of Virginia and any action to enforce any right or obligation hereunder shall be subject to the exclusive jurisdiction of the courts of the Commonwealth of Virginia.


The parties hereby agree to the conditions set forth in this Memorandum of Understanding. 


Dated:_____________________________               ___________________________________

Beverly Carter, Executor of the Will

of Paul Mellon           



                                                                                    Frederick A. Terry, Jr., Executor of the

                                                                                    Will of Paul Mellon


                                                                                    THE BOARD OF SUPERVISORS OF

                                                                                    FAUQUIER COUNTY, a body politic



Dated:                                                                                     BY                                                                  

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