Loading...
HomeMy WebLinkAbout2009-017 Purchasing - Telesis Construction Management, LLC - Amendment to Agreement of Purchase and Sale (Library Building) dated 2-1-2008y- ~-a s ~.~ ORANGE COUNTY NORTH CAROLINA AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (LIBRARY BUILDING) THIS AGREEMENT OF PURCHASE AND SALE (LIBRARY BUILDING) "A reement" is made effective this day of 2009 (the ( g ) "Execution Date"), by and between TELESIS CONSTRUCTION MANAGEMENT, LLC, a North Carolina limited liability company ("Seller"), and ORANGE COUNTY, NORTH CAROLINA, a body corporate and politic and a political subdivision of the State of North Carolina ("Purchaser") WITNESSETH: WHEREAS, Seller and Purchaser entered into an Agreement of Purchase and Sale (Library Building) made effective February 1, 2008 (the "Agreement"), which Agreement provides for the sale and purchase of a public library to be constructed and located in Hillsborough, North Carolina; and WHEREAS, the parties have previously agreed to amend the Agreement and agree the Agreement needs further amendment all as described herein. NOW, THEREFORE, in consideration of good and valuable consideration, the mutual receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Incorporation of Preamble and Recitals. The preamble .and recitals to this Amendment are hereby incorporated herein by reference and made a part of this Amendment. 2. Definitions. All capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Agreement. All references in the Agreement to "this Agreement" shall be deemed to be the Agreement as amended by .this Amendment unless the context requires otherwise. 3. Paragraph 2.01 of the Agreement is deleted in its entirety and replaced with the following: 2.01 The purchase price (the "Purchase Price") for the Property shall be Six Million Four Hundred Ninety-Three Thousand Five Hundred Sixty-Seven and No/100 Dollars ($6,493,567.00) as shown on the attached EXHIBIT B less a credit in the amount set .forth in Section 2.03 below, and as may be further adjusted as provided in this Section and in SECTION 3, payable in immediately available funds to Seller at Closing. 4. Paragraph 2.02 of the Agreement is deleted in its entirety and replaced with the following: 2.02 The Purchase Price shall be increased by such amount(s) as may be necessary to compensate Seller for (a) any Building construction costs and/or expenses not included in the Guaranteed Maximum Price (as hereinafter defined) that are compensable pursuant to the Agreement For Construction Manager at Risk Services, as amended ("the Construction Agreement"), by and between Seller and Purchaser, and (b) any Building construction costs and/or expenses not included in the Building Construction Budget that are incurred by Seller by reason of a change order or change order directive issued by Purchaser. The Purchase Price purchases the Property and includes (1) the construction of the shell of the Building, (2) the exterior improvements to the Real Property and (3) the. Interior Upfit Allowance, which, among other things, make up the "Guaranteed Maximum Price." 2 5. Paragraph 2.03 of the Agreement is deleted in its entirety and replaced with the following: 2.03 The Purchase Price shall be credited by One Hundred Twenty-three Thousand Nine Hundred Ninety-Seven and No/100 Dollars ($123,997.00), the cost of all design professionals whose contract(s) are assigned to Purchaser pursuant to N.C. Gen. Stat. Section 143-64.31 less any amount of such budgeted cost Seller has paid such design professionals as shown on the attached EXHIBIT C. 6. Paragraph 5.04 of the Agreement is deleted in its entirety and replaced with the following: 5.04 As a further condition precedent to Purchaser's obligation to close the purchase of the Property, Seller and Purchaser shall have made and entered into a written lease agreement pursuant to which Seller shall lease to Purchaser, upon terms and conditions mutually satisfactory to Seller and Purchaser, the exclusive use of the Allocated Parking Spaces. As used herein, "Allocated Parking Spaces" shall mean two hundred (200) parking spaces in the parking deck constructed by Seller on a tract of land lying south of the Property and north of N & K Street which shall be allocated for the exclusive use of the owner of the Building and such owner's tenants, employees, customers, guests, licensees and invitees. Allocated Parking Spaces was determined by subtracting from two hundred forty-three (243) the number of parking spaces which shall have been licensed by Seller to Purchaser or otherwise made available or reserved for the exclusive use of Purchaser within .the project complex (including .the Real Property, the parking deck, the proposed Orange County office building tract and the Gateway Center Building tract). Seller. and Purchase acknowledge that it is their intent that a total of two 3 hundred forty-three (243) parking spaces shall be allocated to Purchaser within the project complex for Purchaser's use of the Building, Units 200 and 300 in the Gateway Center Building and the proposed Orange County office building. Only to the extent that such parking spaces could not be accommodated within the project complex and outside the parking deck were parking spaces allocated to Purchaser within the parking deck. 7. The prefatory clause to Section 9 of the Agreement is deleted in its entirety and replaced with the following: Seller represents and warrants to Buyer (each of which representations and warranties shall be true as of the Date of Agreement and as of the Closing) as follows: 8. Continued Force and Effect. The Parties confirm the Agreement as amended by the Amendment and acknowledge and agree that, as amended by this Amendment, the Agreement is binding and is and remains in full force and effect. 9. Counterparts. This Amendment may be executed in any number of counterparts and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all Parties have not signed the same counterpart. Any signature delivered by a party by facsimile transmission or by sending a scanned copy of the executed Amendment by electronic mail shall be deemed, and shall have the same force and effect as, an original signature hereto. [Signature Page to Follow) 4 IN WITNESS WHEREOF, Seller and Purchaser have each caused this Agreement to be executed by its duly authorized representative(s) as of the day and year indicated below. SELLER: Telesis Construction Management, LLC, a North Carolina limited liability company By: Ld George A. Orton, Member/ a By: D PURCHASER: (SEAL) er/Manager Orange County, North Carolinas a bQdyvpQli and corporate and a political sy~ ' ~ of ~ State of North Carolina ,~ ~ '~; , B y. -- v u,[~~ W Name: Title: ,~ , ~ Date: F:\Lisa\o~angecounty\ Library Purchase Agreement Amendment fiual.doc 5 Exhibit B: Purchase and Sale Amendment Reconciliation: Library para 2.01 Library Original Contract Purchase Price 6,662,957 Sustainable 4 Pipe HVAC System' 164,861 Generator, Structural Steel, and Site Revisions2 253,942 Contract Upfit Allowance Adjustment' (588,193) Amended Purchase Price 6,493,567 Footnotes 1 -This represents the sustainable designs approved by the BOCC on 11/6/08 2 -These costs are approved alternates and changes to those alternates that arrived after bid. The changes are the result of 1)post-design structural steel reinforcement for roof mounting of the generators instead of generator placement in the alleyway between the two buildings, a change needed to accommodate service vehicles in the alleyway; 2) the availability of more efficient HVAC controls for more efficient and sustainable operation of the library; and 3) mathematical reconciliation between the conventional design and the sustainable design costs. These additional costs are reasonable for the work to be performed. 3 -Adjustments made due to the actual bid cost of the building upfits related to the contractual allowances described in paragraph 2.02 of the original Purchase and Sale Agreement. Exhibit C: Design Cost Credit due to County: Orange County Library pars 2.U3 sneering Contract Amounts Brockweil ~ Associates Architecture Library Development Plan 4,200 Architecture 91,471 Structural Engineer _ ~ _ 17,500 EDi Engineering Plumbing, Mechanical and Electrical Engineering 35,400 Construction Administration Fee Adjustment 5,772 Total of Contract Amounts Less Contract Fees Paid by Telesis-0riginal' (27,460) - Construction Admin2 (2,886) Credit Sum due Orange County 123,997 1 -The basic services fees for design of the Office Building. and Library were included in the original Purchase and Saie Agreement with Telesis Construction Management Since these fees are now the County's responsibility, the fees are being credited in th~ Agreement to the County. The original fees of $397,806 were approved by the BOCC on 12/11/07. This net figure represents the true credit since Telesis had previously paid $74,215 of this $397,806. The number footnoted is the library share of the amount paid by Telesis. 2 -The professional design fees that were originally represented in the Purchase and Sale Agreement did not include design and engineering construction administration fees. This amount represents. a credit to the County for fifty percent of the total of $15,600 of additional fees. Telesis Construction Management has agreed to pay the other half. The number footnoted is the library share of the amount paid by Telesis.