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HomeMy WebLinkAboutAgenda - 01-15-2008-4yREVISED 1/11/08 Abstract and Attachments ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: January 15, 2008 Action Agenda Item No. _ ~=_~ SUBJECT: Contract Modifications: County Campus DEPARTMENT: County Attorney & Purchasing PUBLIC HEARING: (Y/N) No ATTACHMENT(S): Resolution (including its Exhibit A, a copy of the June 26, 2007 Resolution) November 2, 2006 Agreement of Intent Amended contracts Under Separate Cover (view at www.co.orange. nc.us/OCCCLERKS/080115.htm (See Item 4-y) INFORMATION CONTACT: Geoffrey Gledhill (919) 732-2196 Pam Jones (919) 245-2652 PURPOSE: To consider approving a resolution regarding the Agreements for Purchase and Sale of the Office Building and the Library and the Agreement for Construction Manager at Risk Services (the "Agreements"), as modified per the Attachments. The Agreements anticipate the purchase and construction of facilities on the county campus off of West Margaret Lane, Hillsborough. BACKGROUND: The Board of Commissioners on November 2, 2006 approved an Agreement of Intent for the construction and purchase of two buildings on the County campus tiff of West Margaret Lane, essentially in the location of the previous Southern States building. Over several months, the County Attorney and County staff worked with Telesis Construction Management, LLC, the developer and its attorneys to arrive at the terms of a purchase agreement(s) for the two buildings, as well a construction agreement(s) for the construction of the facilities. These Agreements were presented for approval and approved by the Board of Commissioners on June 26, 2007. The Board authorized the Attorney and staff to finalize the Agreements, substantially consistent with what was presented with the June 26, 2007 agenda item. While most of the terms remain consistent with that which was approved by the Board in June 2007, there are changes to the agreements that are being brought to the Board's attention at this time. Copies of the original agreements approved by the Board in June 2007, with the proposed modifications noted in redline format are included as part of this abstract package and can be reviewed at www.co.orange.nc.us/OCCCLERKS/080115.htm (See Item 4-y). REVISED 1/11/08 Abstract and Attachments The most notable modification clarifies that Section 4(2) of the Agreement. of Intent remains part of the parties' agreement after the Purchase Agreements are signed. Section 4(2) allows Telesis to request an adjustment to the guaranteed Project Cost in two limited situations: (1) if the County modifies the scope of work or (2) in the event the project is delayed by reasons beyond the control of the developer. While the Manager of Telesis, George Horton, indicates his desire and willingness to hold the original cost of $17,939,079, the project is essentially six months behind the original estimated schedule. The reasons why the original timeline has not been met are several, including, but not limited to: • An extended period needed by the County to program the office building in order to ensure the final product is suitable for the long-term use by the County departments; and • An extended period needed by the County and its library planning consultant to program the Library space; and • The time needed to obtain the necessary regulatory approvals. Telesis is endeavoring in good faith to accommodate this delay without seeking any adjustment but wishes to preserve its rights in the event its best efforts are not completely successful. Telesis is currently pre-qualifying contractors and preparing, with the County's collaboration, to solicit bids pursuant to the public bidding requirements of the Agreement of Intent and the Agreement for Construction Manager at Risk Services. Cost increases, if any, that result from this effort would be presented to the Board of Commissioners for approval as may be appropriate. FINANCIAL IMPACT: The cost of this project was included in the County and School Project Debt Issuance Schedule as presented in the fall 2006. The project is funded contingent upon underwriting approval, LGC approval and the project cost being in compliance with the County's Debt Policy. The Board is reminded that the construction cost of $17,939,079 as reflected in the Purchase Agreements for the office building and library include an upfit allowance of $33/square foot for the office building and $55/square foot for the Library. The County will be responsible for any costs for upfit and sustainable design elements that exceed these amounts. The upfit allowances have not changed from the June 2007 agreements approved by the Board. RECOMMENDATION (S): The Manager recommends that the Board approve the attached Resolution reflecting the modifications to the Agreement for Purchase and Sale of the Office Building and the Library and the Agreement for Construction Manager at Risk Services. 3 Resolution Providing Approval of Modified Agreements for the Construction of and Sale and Purchase of the County Campus Office Building and Library WHEREAS, on November 2, 2006, the Orange County Board of Commissioners ("the Board") approved an Agreement of Intent between Orange County ("the County" or "County") ,and Telesis Construction Management, LLC ("Telesis") for the Telesis construction of and the Telesis sale of and the County purchase of the Office Building and Library, both part of a new "County Campus" located in Hillsborough, North Carolina; and WHEREAS, on June 26, 2007 the Board approved the Resolution attached hereto as Exhibit A, approving the form of Agreements of Purchase and Sale for the Library and the Office Building and the Agreement for Construction Manager at Risk Services (collectively "the Agreements"); and WHEREAS, the resolution approving the form of the Agreements created some uncertainty as to whether certain provisions of the Agreement of Intent remained applicable; and WHEREAS, the provisions of the proposed Agreements have been modified and updated accordingly, and WI~REAS, the County attorney has made available to the Board draft modified agreements relating to carrying out the Agreement of Intent with respect .to the Office Building and the Library which draft agreements are attached hereto. NOW, THEREFORE, BE IT RESOLVED by the Board as follows: "'f 1. Approval of Documents; Direction To Execute Documents -The Board approves the form of the modified agreements submitted to this meeting. The Board authorizes and directs the Board's Chair and the County Manager, or either of them, to execute and deliver the modified agreements in their final forms. The Board authorizes and directs the County Finance Officer to complete any preauditing certificate as required by law. The modified agreements in their respective final forms must be in substantially the forms presented, with such changes as the Chair or the County Manager may approve. The execution and delivery of any agreement by an authorized County officer will be conclusive evidence of his or her approval of any such changes. 2. Authorization to County Manager to Complete Closing -The Board authorizes and directs the County Manager to take all appropriate action to complete the agreements with Telesis in accordance with this Resolution. The Board authorizes and directs the County Manager to hold executed copies of all agreements authorized or permitted by this Resolution in escrow on the County's behalf until any and all conditions for their delivery have been completed to such officer's satisfaction, and thereupon to release the executed copies of such documents for delivery to the appropriate persons or organizations. Without limiting the generality of the foregoing, the Board specifically authorizes the County Manager to approve changes to any agreements or certifications previously signed by County officers or employees, provided that such changes do not conflict with this Resolution or substantially alter the intent from that expressed in the form originally signed. The County Manager's authorization of the release of any such document for -a- 5 delivery will constitute conclusive evidence of such officer's approval of any such changes. 3. Miscellaneous Provisions -All County officers and employees are authorized and directed to take all such furfher action as they may consider necessary or desirable in furtherance of the purposes of this Resolution, including the execution and delivery of additional agreements as they may determine to be in the County's best interest. All such prior actions of County officers and employees are ratified, approved and confirmed. Upon the absence, unavailability or refusal to act of the County Manager, the Board's Chair or the Finance Officer, any other of such officers may assume any responsibility or carry out any function assigned in this resolution. A11 other Board proceedings, or parts thereof, in conflict with this resolution are repealed, to the extent of the conflict. This Resolution takes effect immediately. Upon motion of Commissioner ,seconded by Commissioner , the foregoing resolution was adopted this the day of , 2008. I, Donna S. Baker, Clerk to the Board of Commissioners for the County of Orange, North Carolina, DO HEREBY CERTIFY that the foregoing is ~ true copy of so much of the proceedings of said Board at a meeting held on as relates in any way to the adoption of the foregoing and that said proceedings are recorded in the Minute Book of the Board. WITNESS my hand and the seal of said County, this day of , 2008. Clerk to the Board of Commissioners 12925\Ol\M\099Resolution Providing Approval (01.09.08 Clean) 3- Exhibit A Resolution Providing Approval of Agreements far the Constraction of and Sale and Purchase of the~County Campus Office Building and Library WHEREAS, on November 6, 2046, the Change County Board of Commissioners {"the Board"} approved an Agreement of Intent between Orange County ("the County" or "County") and Telesis Construction Management, LLC ("Telesis"} for the Telesis construcrion of and the Telesis sale of arid the County purchase of the Office Building and Library, both part of a new "County Campus" located in Hillsborough, North Carolina; WHEREAS, the County attorney has made available to the Board draft. agreements relating to carrying out the Agreement of Intent with respect to the Office Building and the Library which draft agreements are attached hereto. . NOW, THEREFORE, BE IT RESOLVED by the Board as follows: 1. Approva[ of Documents; Direction Ta Eazecute Documents -The Baard~approves the form of the agreements submitted to this meeting. The Board authorizes and directs the Board's Chair and the County Manager, or either of them, to e~.ecute and deliver the agreements in their final forms. The Board authorizes and directs the County Finance Officer to complete any preauditing certificate as required by law. The agreements in their respective final forms must be in substantially the forms presented, with such changes as the Chair ar the County Manager may approve. The execution and delivery of any agreement by an authorized County officer will be conclusive evidence of his or her approval of any such changes. The Agreements in final form, however, must provide far the fatal amount due Telesis by the County not to exceed $17,939,079, plus amounts that may be needed to pay other necessary and related County costs. 2. Authorization to County Manager to Complete Closing -The Board authorizes and directs the County Manager to take all appropriate action to complete the agreements with Telesis in accordance with this Resolution. The Board authorizes and directs the County Manager to hold executed copies of all agreements authorized or permitted by this Resolution in escrow on the County's behalf until any and all conditions far their delivery have been completed to such officer's satisfaction, and thereupon to release the executed copies of such documents for delivery to the appropriate persons or organizations. Without limiting the generality of the foregoing, the Board specifically authorizes the County Manager to approve changes to any agreements or certifications previously signed by County officers or employees, provided that such changes do not conflict with this Resolution or substantially alter the intent from that expressed in the form originally signed. The County Manager's authorization of the release of any such document for delivery will constitute conclusive evidence of such officer's approval of any such changes. 3. Miscellaneous Provisions -All County officers and employees aze authorized and directed to take all such further action as they may consider necessary or desirable in furtherance of the purposes of this Resolution, including the execution and delivery of additional agreements as they may determine to be in the County's best interest. All such prior actions of County officers and employees are ratified, approved and confirmed. Upon the absence, unavailability ar refusal to act of the County Manager, i the Board's Chair or the Finance Officer, any other of such officers may assume any responsibility or carry aut any function assigned in this resolution All other Board proceedings, or parts thereof, in conflict with this resolution aze repealed, to the extent of the conflict. This Resolution takes effect immediately. Upon motion of Commissioner seconded by Commissioner the foregoing resolution was adopted this the ,~=t~,.-day of 2p07. I, Donna S. Baker, Clerk to the Board of Commissio crs for the County of Orange, North Carolina, DO HEREBY CERTIFY. that the foregoing is a true copy of so much of the proceedings of said Board at a meeting held o as relates in any way to the adoption of the foregoing and that said pr eedings are recorded in the Minute Book of the Boazd. WITNESS my hand and the seal of said County, this y of 200?. ~ e Clerk o th oazd of ommissioners NORTH CAROLINA ORANGE COUNTY AGREEMENT OF INTENT This Agreement of Intent for Construction Management at Risk Services and for Purchase and Sale as to the Project (as hereinafter defined) and for.Lease and Option to Purchase as to the Auxiliary Project (as hereinafter defined) is made and entered into as of this ~ day of ~~~G~ -',~ °- -, 2006, by and between Telesis Construction Management, LLC, 1000 Corporate Drive, Suite 109, Hillsborough, NC 27278, a North Carolina Limited Liability Company {`"TCM") and Orange County, Narth Carolina, P.O. Box 8181, Hillsborough, NC 27278, a body politic and corporate ("County"). RECITALS A. "TCM" is a contractor, licensed to do business in the State of North Carolina and qualified to perform the construction manager at risk services described in this Agreement in full compliance with North Carolina law. B. TCM owns or will own certain Property described herein by Orange County PIN upon which TCM will, as described herein, assist with the design and manage the construction of certain improvements (together with the Property, the "Project"). C. County desires to contract with TCM and other professionals identified herein for the design, construction management and construction of the Project that is described herein. D. County desires to purchase as specified herein from TCM, and TCM desires to sell and convey to County, the Project in the manner described herein. ~~ E. County also has an interest in leasing the second and third floors of the adjoining Gateway Center Building (a condominium} and in obtaining an option to purchase the same for a sum certain (the "Auxiliary Project"}. NOW, THEREFORE, in consideration of the premises, the mutual promises and agreements herea$er set forth, the parties hereto agree that the following are the material terms upon which County and TCM will contract for the design, construction management and construction of the Project and upon which County and TCM will purchase and sell the Project, including the buildings and associated property rights. I. Project. (including public and private elements}: Phase I -Two story public library (23,454 sf j to be purchased by County to be 1'ocated on the land identified as Orange County PIN 9874051759. Phase II -Three story office building (46,716 sf} to be~purchased by County to be located on the land identified as Orange County PIN 98740S17S9. Phase III -Parking facility with 134 spaces licensed exclusively to County and a minimum of 201 to be retained by TCM to be located on the land identified as Orange County PINS 98740S17S9, 9874052643 and 9874053603. 2. Design Professionals. Architect: (l) Brockwell Associates, Ina (Durham, NC}. (2) To be determined by County and TCM for design of library interior. Structural Engineers: Gardzier & McDaniel, PA (Durham, NC}. MechanicaUPlumbinglElectrieal Engineers: Engineered Designs, Inc. (Raleigh, NC). Civil Engineers (including planning/surveying}: Summit Consulting Engineers, FLLC (Hillsborough, NC). -2- 3. 'Project Construction Method. Construction management at risk contract. (G.S. §143-128(a1)(4)). 4. Construction Manager at Risk. TCM•to contract with the County as provided in G.S. §143-64.31. TCM: (1) will provide construction management services for the Project throughout the preconstnxction and construction phases, and (2) will guarantee the cost of the Project will not exceed the budgeted Project . Cost of $17,939,079. This guaranteed Project Cost will be adjusted in the event (1) the County introduces any changes to the scope of the work envisioned by TCM and the design professionals2 or (2) TCM is delayed in the commencement of construction by reason of the public bid process or by. reason of matters reasonably beyond TCM's control. TCM remuneration: retention of private elements and the amount by which the budgeted Project Cost exceeds actual Project Cost incurred. 5. TCM Construction Method. TCM will publically advertise, prequalify and accept bids on a single prime basis from licensed general contractors. TCM and the County will develop mutually agreeable prequalification criteria including, but not limited to: This sum to be reduced by those.portians of the contract balances remaining to be paid to design professionals whose contracts must be assigned to the County pursuant to G.S..§143-64,31. ZThe Project budget contemplates that TCM will deliver a shell and the upfitted space, the latter as specified by the County. The Project budget includes an upfit allowance of $35/ft2 for the office building interior and an upfit allowance of $55/ft2 for the library interior. The Project Cost will be adjusted to the extent the office building and library interiors upfit costs exceed the budgeted office building and library interior allowances contained in the guaranteed Project Cast. The interior upfit costs shall be identified in the bid documents and the cost to upfit the interiors shall be identified in the construction bid(s). -3- (~ • construction quality history. • experience and performance history. • ability to complete each element of the Project within its respective Contract Time, • ability to complete the entirety of the Project within the budgeted Project Cost. • cost of construction oversight. • financial stability. • stability of principal subcontractors (electrical, mechanical, plumbing, framing, masonry, sitework). . • ~ bonding capacity and rating of surety. . • value engineering experience. • ~ minority business participation plan in compliance with G.S. 143-128.2. • amenability to contracting pursuant to modified AIA Contract Documents to be prepared by TCM. TCM will require the single prime general contractor to furnish 104% performance and payment bonds which name TCM's construction lender, TCM and the County as joint obligees. TCM will reserve the right to withdraw from the Project without penalty or liability in the event TCM determines, in its discretion, that the lowest responsible, responsive bidder is nonetheless unacceptable to TCM. b. ~ Project Completion Schedule. Office building/ library/parking facility) substantial completion 05/2008 Closing of purchasetof office . building and library 05/2008 Licensure of parking spaces to county ~ os/zaa8 -4- (~ 7. Takedown Schedule_and Re uQ irements. 05/08 Office building/ library and associated parcels of land $17,939,079 05/08 Parking facility $1.00/year plus prorated annual maintenance ,cost pass- through.3 8. Auxiliary Project. . a: Profile. Gateway Center Building (a condominium) to be located on the land identified as grange County PINS 9874054586, 9874054682, 9874053673 and 9874053450. .. Floor 1 {11,423 sf) to be purchased by Weaver Street Market. Floors 2 (11,423 sf) and 3 (11,423 sfl and 41 additional Project Parking facility parking spaces -- available far lease by County for 366 days with an option. to purchase at the end of the lease perigd. b. Auxiliary Project Completion Schedule . Gateway Building substantial completion 11!2007 41 additional licensed Project Parking facility parking spaces 5/2008 c. ~ Takedown Schedule and Requirements. Lease: . 3In 2006 dollars, estimated to be $65.00 per space. -5- ~~ 1112007 Lease of Floors 2 and 3 24.75/ft $47,1201 month 5/2008 41 additional Project Parking facility parking spaces. If option to purchase exercised: 9. 11/08, Floors 2 and 3 ~ of conciaminium 11/08 41 additional Project Parking facility parking spaces Contin eg ncies. $1.00/year plus prorated annual maintenance cost pass through. Successful assignment to County of Design Professional Contracts between TCM and the Design Professionals. TCM's completion of all contemplated transactions with Weaver Street Market. Land use approvals by Town of Hillsborough. Satisfaction of construction loan underwriting criteria of TCM lender. LGC and underwriting approval of debt structuring of Orange County debt so that it complies with Orange County's policies of 15% of General Fund Budget debt service payments and 7% annual growth of General Fund Budget. Execution and delivery of Contract Documents mutually agreeable to TCM, the single prime general contractor, the contractor`s surety, TCM's construction lender, the County and the County's lender, if necessary. $1.00 for balance of Lease term plus prorated annual maintenance cost of pass through. 22,846 sf. $ 5,490,449 -6- 15 No violation of law (including environmental} with respect to the Project, the Auxiliary Proj ect or any portion of either shall exist as of the date of lease and as of the date of sale closing of either or any portion of either. The obligations of the parties to this Agreement as described in this Agreement are expressly subject to, and contingent upon the execution of all necessary further Agreements, in form and substance acceptable to the parties, in the sole and absolute discretion of each. The parties agree to promptly and in good faith negotiate the terms and conditions of all necessary further agreements. ORANGE COUNTY, Nt~RTH Barry Jacobs, h ' , Or ge County Board of Cox~~ssion ATTEST: _ _ _ ~ Donna S. Baker, Clerk to the Board of Commissioners Telesis Constnzction Management, LLC ,, ~ ... George A. Horton, III, Member onager ATTES (T~: ~~.~~-it P rr~a ~~ J -7-