Loading...
HomeMy WebLinkAbout2008-040 Purchasing - Clancy and Theys Animal Services Facility Phase II Building.. ~- .s 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 ~~day of Ur~V r _ 2008, (the "Execution Date") by and between ORANGE COUNTY, NORTH CAROLINA ("Owner"), and CLANCY & TREYS CONSTRUCTION CO., a North Cazolina 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 Manaeer at Risk Services made effective February 19, 2008 (the "Agreements 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 Cazoiina (the "Facility'; 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 RTOrk 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." 5. Guaranteed Mazimnm 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 Comnuss2oners 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 $ ] 75,000, 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. b. 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 Owner 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. CoQnternarts. 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 Fo1CowJ • • • • IN 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, NAC 27603 By: s l/{. Joel .Clancy, Executive ice President Attest: By: Title: ~/~((~1, ~~i (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 and Fiscal Control Orange Coun ce Officer This in~ument is approved as to Form. Attorney • F.l(inbrnige counrylAmmdmenl to OCAS C~fAR cmtne[ (Ine eleaa b 13-06) rn by G5G 62006.doc Government Budget 4 Donna S. Baker Clerk to the Boazd RIDER • To be attached to and form a part of: Bond No. 105072507 Type of Bond: Performance 8~ Payment Travelers Casualty and Surety Company of America One Tower Square, Hartford, CT 06183 Executed by Clancy St Theys 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. fn 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 & 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 8 TREYS CONSTRUCTION COMPANY By: "RIDER ACCEPTED Principal Traveler al and Surety Company of America .L.l~ ~ . , Phoebe C. Honeycutt, ~U Date *If Obligee signature required, please sign duplicate and return to Surety. • s-izsa ~o~-ss~ TRAVELERSJ~ POWER OF ATTORNEY Farmington Casualty Company Fidelity and Guaranty Insurance Company Fidelity and Gosranty 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 Attorney-In Fact No. 219639 'IY~avelers Casualty and Surety Company of America United States Fidelity and Guaranty Company CertiScate No. 0 0 2 2 0 3 6 6 6 KNOW ALL MEN BY THESE PRESENTS: That Seaboazd 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 Guadian 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. Byrtun, 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 Carolina ,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,l~usjpess of„guazanteeing the fidelity of persons, guazanteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or perm~tin an~ons ~r~i~iceedings allowed by law. `~ ' t `rte, , ,`i ' ~ ~' -~=.k 12th IN WITNESS WHEREOF, the Companies have caused this ins ]t~o~e eand tttyf~%cpr~porate seals to be hereto affixed, this day of February 2008 °'"g ~ ; '' . ~,.1 " ' ~ ~'' Farmington Casualty Copt `~.'~ ~~° St Paul Guardian Insurance Company Fidelity and Guaranty~s ` paryvg ~.~ ~ St Paul Mercury Insurance Company Fidelity and Guaranty Ins nderwt~ters, Ina Travelers Casualty and Surety Company Seaboard Surety Company 11~avelers Casualty and Surety Company of America St Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company G,.BU SInETY PPE i ~M DNS ~ 1NSUq J,}tv wNOq ,lE~fry Oriy~~`/~~q,q'4)` I*~~j ~~ '1;r- ~O}:pr~..U,y aP .......... ;9,~, • G i~~ ~OIB =6 E1~2~ O ~ ~~ 1961 ~i- RPORw> }'~, Z ~~.4A~tf i' IWRFOIID, 't f~~ ~O $`~i ~ ~~ ~~J~ oy, ~ ~~EALfeo ~~~S81f.L~~si ~ c~ ~o ~~' s e~ 1~6 y . ~ ~rEYt yfVxwuGE o `d!S AMA, t^-''~x ~~i ~ ~~~ ,~1~ MN~ State of Connecticut City of Hartford ss. By: Georg Thompson, nior ice President On this the 12th day of February 2008, before me personally appeared George W. Thompson, who acknowledged himself to be the Senior vce President of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., Seaboazd 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 Guaanty 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. p.TEf In Witness Whereof I hereunto set my hand and official seal. '~ * R~ My Commission expires the 30th day of June, 2011. # p~~<<y~} `C'(~c~n~ C . ~ Marie C. Tetreault. Notary Public 58440-5-07 Printed in U.S.A. ACORD,~INSURANCE BINDER °"~'~'"''"'°°""'"' 03/07/?.NS THIS BMIDER IS A TEMPORARY MIS URANCE CONTRACT, SUBJ ECT TO THE CONDITIONS SHOW N ON THE REVERSE SIDE OF THIS FORK. AMY tANPANY NrNOaes Dsrfey-HNVer-Hswiea Travelers ~N307H35H8 3741 Heaesa Drive o„~.~ .~ N9O~RA710N Haler, HC Z7i08-73E4 Y6/~/ZN8 1Z:®i z '4A" SZ/is/8009 z ~2w AM PM NOON ~~ 919)790-6415 No 919)7M-0428 TENS BNdDER IS ISSUED TO EXTEND COVERAGE NV THE ABOVE NAKED COMPANY Cpp@: HH567 gt~c~. PER EXPIRMG POLICY #. ~~ -- aa~e vwaa.' nraaaa oea ~aa~es seea=aaae., Clancy A ~s Cwst>ACtieNt ~ Hers Hick - 1601 HNiaaka Hi. , Ciy:el Hill !® H~ 876941 Haleigk, NC 87611 ~sr.Fs TweoFn+suRAN~ ccvNw-ar~owrs oNNxictetr caNSS•,c /1NAOtI1fi r"~^' causESOFLOSS BASIC ~ BROAD ®SPEC fliers Hisk - LIaNNi Yarfae Fnvt i, 7,354, EACH OCCURRENCE S COMMERCULL GENERAL LU4BILITY i CLAIMS MADE ~ OCCUR MED EXP M ane i PERSONAL d ADV NJJURY i GENERAL AGGREGATE i RETRO TE FOR CLAI MADE: - COMP/0P COMBWED SNJGLE LNyNT i ANY AUTO 80DILY Per ALL OWNED AUTOS BODN_Y IN.IURY Per aaident i SCHEDULED AUTOS PROPERTY DAMAGE HIRED A(JfOS MEDICAL PAYMENTS NON-OWNED AUTOS PERSONAL WURY PROT IR~ISURED DEDUCTIBLE ALL VEHICLES SCHEDULED VEHICLES CASH VAL ~~' S LT1Y ANY AUTO NEXCESEiL1ANNLITY UMBRELLA FORM 71CN A!~ NaNNei Iassrei: Clams A ~s CsNNStractisa Ce asi All SNi aNNi ~ Sdi-SNNr Csatract~rs sai 0ra~e CsN:aty, HC ccnlNN: ~ MDRTC,M3EE ADDITIONAL NJSIAtED LOAN ,-,~ 0~~:~~.. fatty DFewasw~i/IAYIY ACORD7b(2004/09) NOTE:IIIIIPORTANTSTATEINFORMATiONONREVERSESIt~ ~IACORDCORPORATIOFl1893,Z004 CONDITIONS This Company binds the Idnd(s) of insurance stipulated on the reverse side. The Insurance is subject to the terms, conditions and limitations of the po{icy(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 eifedive.This binder may be cancelled by the Company by notice to the Insured in accordance with the pdicy editions. This binder is cancelled when replaced by a pdicy. Ifthis binder is not replaced by a pdicy, the Company is entitled to charge a premium for the binder according to the Rules and Rates in use by tl~e Company. Applicable in California When this form is used to provide insurance in the amount of one million dollars (x1,000,000) or more, the title of the form is changed from "Insurance Binder" to "Cover Note". Applicable in Colorado With respell to binders issued to renters of residential premises, home owners, condo unit owners and mobile home owners, the insurer hasthirty (30) business days, commendng from the effed~ve date of coverage, to evaluate the issuance of the insurance pdicy. Applicable in Delaware The mortgagee or Obligee of any mortgage or other instrument given for the purpose of cxeating a lien on real property shall accept as evidence of insurance a written binder issued by an authorized insurer ~ 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 appligble 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 60 days. For auto insurance, the insurer must Bice 5 days prior notice, unless the binder is replaced by a pdicy or another binder in the same company. Applicable in Nevada Any person who refuses to accept a binder which provides coverage of less than x1,000,000.00 when proof is required: (A) Shatl be fined not more than x500.00, and (B) is liable to the party presenting the binder as proof of insurance for actual damages sustained therefrom. ACORDT6(20041'09)