HomeMy WebLinkAbout2008-039 Purchasing - Clancy & Theys construction -Construction Mgr at Risk Animal Services Facility Phase II 062608s ~l~ -~~3/~da~
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Please return this copy to
Clerk to the Board's office far PAF •
ORANGE COUNTY -
NORTH CAROLINA
FIRST AMENDMENT
TO
AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES
THIS FIRST AMENDMENT TO AGREEMENT FOR CONSTRUCTION
MANAGER AT RISK SERVICES {this "Amendment'') is made effective this o~day of
~~~, t r__ 2008, (the "Execution Date") by and between ORANGE
COUNTY, NORTH CAROLINA ("Owner"), and CLANCY & THEYS CONSTRUCTION
CO., a North Carolina corporation ("CHAR") (Owner and CHAR to sometimes be referred to
together herein as the "Parties").
WITNESSETH:
WHEREAS, Owner and CHAR entered into an Agreement for Construction Man er at
Risk Services made effective February 19, 2008 (the "Agreemenl") for the site work portion {the
"Original Scope of Work") of the construction of an Animal Services Facility to be located in
Chapel Hill, North Carolina (the "Facilily'~; and
WHEREAS, the Agreement contained a Guaranteed Maximum Price of $1,308,733.00 for
the completion of the Original Scope of Work; and
WHEREAS, the Parties now desire to amend the Agreement to expand the definition of
"Project" from just the site work component of the Facility to the total construction of the Facility,
and, accordingly, the scope of CMAR's services and the Guaranteed Maximum price.
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. CHAR name. The name of the CHAR is hereby corrected to be Clancy &
Theys Construction Co.
4. Proiect• The definition of Project is hereby amended from referring only to site
work construction for the Facility to referring to the total construction of the Facility, including
the site work construction. Specifically, the term "Project" .shall now mean "the total
construction of the Facility of which the VGjork may be a whole or part." The term "Work
required for the Project" shall mean "the services required to be performed by CMAR under this
Agreement including the various parts of total construction to be performed under this
Agreement."
S. Guaranteed Maximum Price.
{a) The Parties acknowledge and agree that (i) all design phase, bidding, and
other pre-construction obligations of CMAR, including Value Analysis, have been satisfactorily
completed; (ii} a description of CMAR's Value Analysis, as accepted by Owner, is attached
hereto as Exhibit "A" and incorporated herein by reference; (iii} Drawings and Specifications
have been submitted by the Designer and accepted by the Owner, and (iv) the bidding process
based on the Drawings and Specifications have been completed. Based on the foregoing, the
Parties agree that the Guaranteed Maximum Price for the CMAR's Work as of the date hereof
shall be the sum of $7,354,500.00 (the "GMP"), the components of which are set out and
described on Exhibit "B" attached hereto and incorporated herein by reference. The Parties
acknowledge and agree that there will likely be additional revisions to the Drawings and
Specifications as a result of modifications made during the Value Analysis process.
(b} Owner's Project budget includes contingency amounts spread throughout
the Project budget. However, Exhibit B does not include a separate contingency and the
Agreement Guaranteed Maximum Price does not contain a separate contingency. CMAR has
agreed to this First Amendment and its Guaranteed Maximum Price with the following
understanding: Owner's Management staff will recommend approval to the Board of
Commissioners of Owner, at a meeting of that Board on August 19, 2008, a Second Amendment
to the Agreement which Second Amendment will add a CMAR contingency line item totaling
$104,000 and which Second Amendment will increase the Guaranteed Maximum Price by
$104,000 to a total of $7,458,500. The Parties further agree that this $104,000 can be made
available to CMAR for use by the CMAR under the following conditions: 1) that the
contingency need is a condition communicated to the Owner by the CMAR and approved per the
Agreement as a change order; 2) that the condition is not part of the CMAR's general conditions,
profit or overhead; 3) that the condition is not a scope change directed by the Owner; and 4) that
at the completion of the Work, any amount of the $104,000 CMAR contingency not approved
for CMAR contingencies will revert to Owner and will not be included in the request of CMAR
for final payment. In addition, if during the course of the Work, CMAR should require the use
of additional contingency money in excess of $104,000 but not exceeding $175,000, Owner's
Management staff shall use their best efforts to obtain authorization from the Board of
Commissioners, as quickly as reasonably practicable, for an increase in the CMAR contingency
line item, and, thus, the Guaranteed Maximum Price, by such required amount.
6. Bonds and Insurance. CMAR shall promptly notify both its bonding company
and Builders Risk insurance carrier that the Agreement has been amended and that the
Guaranteed Maximum Price is now as set forth above, and shall obtain an updated or
replacement Builders Risk Insurance Binder and updated or replacement Payment and
Performance Bonds to reflect this Amendment all of which will be effective on the Execution
Date and bear that date. CMAR shall promptly provide copies of these updates or replacements
to Ov~~ner following CMAR's receipt thereof.
2
7. Continued Force and Effect. The Parties confirm the Agreement and
acknowledge and agree that, as amended by this Amendment, the Agreement is binding and is
and remains unchanged and in full force and effect.
8. 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 Fo11owJ
1N WITNESS WHEREOF, the Parties hereunto, intending to be legally bound, and with the
signatories representing they are empowered to bind their principals, have executed this Amendment
on the day and year hereinafter first written.
CMAR: Clancy & Theys Construction Co.
516 West Cabarrus Street
Raleigh, NC 27603
By: a
Joel .Clancy; Executive ice President
Attest:
By:
Title: ~~ .(~ ,
(Secretary) {Manager} {Witness)
OWNER: ORANGE COUNTY, NORTH CAROLINA
P. O. Box 8181
Hillsborough, N.C. 27278
By:
of Commissioners
Attest:
This instrument has been pre-audited in the manner required by the local Government Budget
and Fiscal Control
r
Orange Coun ~" ce Officer
This i ent is approv d as to F/orm
~.C~
Attorney
F.1Lisabrange counsylAmendmem to OCAS CA(AR contract (kas clean 613-08) rev by GEG 62008.duc
4
Donna S. Baker
Clerk to the Board
RIDER
Travelers Casualty and Surety Company of America
One Tower Square, Hartford, CT 06183
To be attached to and form a part of:
Bond No. 105072507
Type of Bond: Performance 8~ Payment
Executed by Clancy & Thevs Construction Company, as Principal, and by Travelers Casualty and Surety Company
of America, as Surety, in favor of Orange County and dated 3/20/2008.
In consideration of the premium charged for the attached bond, it is hereby agreed to change:
Bond Amount
From:
One Million Three Hundred Eight Thousand Seven Hundred Thirty-three 8~ no/100-------($1,308,733 00)
To:
Seven Million Three Hundred Fifty-four Thousand Five Hundred & no/100-------------------($7,354,500 00)
This rider is effective June 26. 2008.
This rider is executed upon the express condition that the surety's liability under said bond shall not be cumulative and
shall in no event exceed the amount specifically set forth in said bond or any existing certificate changing the amount of
said bond. The referenced bond shall be subject to all its agreements, limitations and conditions except as herein
expressly modified.
SIGNED, SEALED AND DATED this 26th day of June, 2008.
CLANCY & THEYS CONSTRUCTION COMPANY
By:
mcipal
Traveler al and Sure~ty~C^ompany of America
B .~.C~ lea ~ < l ~--,r .c~l(Y'
'`RIDS ACCEPTED B
Phoebe C. Honeycutt,
(Obl
~~~'/ ~d
Date
`If Obligee signature required, please sign duplicate and return to Surety.
S-1234 (01-99)
Is I
~~~ POWER OF ATTORNEY
TRAVELERS ~ Farmington Casualty Company St. Paul Guardian Insurance Company
Fidelity and Guaranty Insurance Company St. Paul Mercury Insurance Company
Fidelity and Guaranty Insurance Underwriters, Inc. Travelers Casualty and Surety Company
Seaboard Surety Company 7t~avelers Casualty and Surety Company of America
St. Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company
Attorney-In Fact No. 219639 Certificate No. 0 0 2 2 0 3 6 6 6
KNOW ALL MEN BY THESE PRESENTS: That Seaboard Surety Company is a corporation duly organized under the laws of the State of New York, that St. Paul
Fire and Marine Insurance Company, St. Paul Guardian Insurance Company and St Paul Mercury Insurance Company are corporations duly organized under the laws
of the State of Minnesota, that Farmington Casualty Company, Travelers Casualty and Surety Company, and Travelers Casualty and Surety Company of America are
corporations duly organized under the laws of the State of Connecticut, that United States Fidelity and Guaranty Company is a corporation duly organized under the
laws of the State of Maryland, that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and
Guaranty Insurance Underwriters, Inc. is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies"), and that
the Companies do hereby make, constitute and appoint
Southgate Jones III, Angela B. Britt, Sandra B. Byrum, Richard V. Haar Jr., Cindy Graham, Phoebe Honeycutt, Kenneth J. Peeples,
Kitara A. Smith, Sandra V. Pierie, and Benton Kyner
of the City of Durham ,State of_ NOrth CarOhna ,their true and lawful Attorney(s)-in-Fact,
each in their separate capacity if more than one is named above, to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and
other writings obligatory in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of
contracts and executing or guaranteeing bonds and undertakings required or permitted in anq actions or proceedings allowed by law.
IN WITNESS WHEREOF, the Companies have caused this instnrment to be signed and their corporate seals to be hereto affixed, this
day of February 2008 `
Farmington Casualty Compam
Fidelity and Guaranty Insurance Company
Fidelity and Guaranty Insurance Underwriters, Inc.
Seaboard Surety Company
St. Paul Fire and Marine Insurance Company
12th
St. Paul Guardian Insurance Company
St. Paul Mercury Insurance Company
Travelers Casualty and Surety Company
Travelers Casualty and Surety Company of America
United States Fidelity and Guaranty Company
GASU,~~ StIREly °r"iRE 4 N ~N ?• j1~"`• tY A
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~y~ctw'~ Ja ~ g t P E . ~- W HARTFORD. HARTFORD,
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IS.:»..~ ~.S........ eta b1 ~N • ~ y~ ~tN`.
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State of Connecticut
City of Hartford ss.
By:
Georg Thompson, enior ice President
On this the 1 Zth da of February 2008
Y , before me personally appeared George W. Thompson, who acknowledged himself
to be the Senior Vice President of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc.,
Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers
Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, and that he, as such, being
authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer.
G•T~
In Witness WhereoF, I hereunto set my hand and official seal. '~ TAIi~
My Commission expires the 30th day of June, 2011. ~jOl/BUG~*
58440-5-07 Printed in U.S.A.
WARNING: THIS
Marie C. Tetreault, Notary Public
IS INVALID WITHOUT THE RED BORDER
INSURANCE BINDER
. ~ACORD ~
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THIS BINDERISA TEMPORARYINSURANCE CONTRACT, SUBJECTTOTHE CONDt?)ONS SHOWN ON THE REVERSESIDEOF THIS FORM.
A<iENCY COWPANY BINDER#
Darfey-Hover-Fawdea Travelers H08030703508
3741 Fe~soa Drive DATE EFFECi1VE .r~NE EXRRATION
1Caleigi, NC 27609-7324 /06/?
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12 AM OZ/18/2009 $ 72:01 AM
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PHONE E 819)790-6415 p C ~,~, 019)700-6422 THIS BINDER IS ISSUED TO EXTEND COVERAGE IN THE ABOVE NAMED COMPANY
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Clancy d TLcys Coastractie>. Ceapaiy
PO Eez 27808
Faleigi~, NC 27611
rnvcoer_cc LIMITS
TYPEOFINSURANCE COVERAGEIFORMS DEDUCTIBLE COINSX AINOI.lDfi
s'R~PERTY CAUSES OF LOSS
BASIC ~ BROAD ®SPEC ilder8 Fisk - Lla~d Marie Fern 1, 7, 354,
GENERALWIBILIiY EACH OCCURRENCE $
COMMERCIAL GENERAL LIABILITY AMAGE TO $
CLAIMS MADE ~ OCCUR MED EXP An one person $
PERSONAL 8 ADV INJURY $
GENERAL AGGREGATE $
RETRO DATE FOR CLAIMS MADE: PRODUCTS -COMP/OP AGG
AUTDNIOBA.ELU1BiLiTY COMBINED SINGLE LIMIT $
ANY AUTO BODI Y IN URY Per person) $
ALL OWNED AUTOS BODILY INJURY Per accident i
SCHEDULED AUTOS PROPERTY DAMAGE $
HIRED AUTOS MEDICAL PAYMENTS $
NON-OWNED AUTOS PERSONAL INJURY PROT
UNINSURED TORIST $
AUTOPHYS~ALDAMAt~ DEDUCTIBLE ALL VEHICLES SCHEDULED VEHICLES ACTUAL CASH VALUE
COLLISION: TAT D $
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covERADEs
MORTGAGEE ADDITIONAL INSURED
LOAN #
AUTHORt2EDREPRESENTATIVE P ~4.X YJL1~~~
Patty Drew...oski/PATTY
ACORD76(2004/09) NOTE:IMPORTANTSTATEINFORMATIONONREVERSESIDE C~4CORDCORPORATION1993-004
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CONDITIONS
This Company binds the kind(s) of insurance stipulated on the reverse side. The Insurance is subject to the
terms, conditions and limitations of the policy(ies) in current use by the Company.
This binder may be cancelled by the Insured by surrender of this binder or by written notice to the Company
stating when cancellation will be effective. This binder may be cancelled by the Company by notice to the
Insured in accordance with the policy conditions. This binder is cancelled when replaced by a policy. If this
binder is not replaced by a policy, the Company is entitled to charge a premium for the binder according to the
Rules and Rates in use by the Company.
Applicable in California
When this form is used to provide insurance in the amount of one million dollars ($1,000,000) or more, the title
of the form is changed from "Insurance Binder" to "Cover Note".
Applicable in Colorado
With respect to binders issued to renters of residential premises, homeowners, condo unit owners and mobile home
owners, the insurer has thirty (30) business days, commenting from the effective date of coverage, to evaluate the
issuance of the insurance policy.
Applicable in Delaware
The mortgagee or Obligee of any mortgage ar other instrument given for the purpose of creating a lien on real
property shall accept as evidence of insurance a written binder issued by an authorized insurer or its agent if
the binder indudes or is accompanied by: the name and address of the borrower, the name and address of the
lender as loss payee; a description of the insured real property; a provision that the binder may not be canceled
within the term of the binder unless the lender and the insured borrower receive written notice of the cancel-
lation at least ten (10) days prior to the cancellation; except in the case of a renewal of a pdicy subsequent to
the dosing of the loan, a paid receipt of the full amount of the applicable premium, and the amount of
insurancecoverage.
Chapter 21 Title 25 Paragraph 2119
Applicable in Florida
Except for Auto Insurance coverage, no notice of cancellation or nonrenewal of a binder is required unless the
duration of the binder exceeds 6fl days. For auto insurance, the insurer must give 5 days prior notice, unless
the binder is replaced by a policy or another binder in the same company.
Applicable in Nevada
Any person who refuses to accept a binder which provides coverage of less than $1,000,000.00 when proof is
required: (A) Shalt be fined not more than $500.00, and (B) is liable to the party presenting the binder as proof
of insurance for actual damages sustained thereftom.
ACORD75(2004/09)