third amendment to construction manager at risk

THIRD AMENDMENT
TO
CONSTRUCTION MANAGER AT RISK AGREEMENT
BETWEEN
THE CITY OF AVONDALE
AND
FCI CONSTRUCTORS, INC.
THIS THIRD AMENDMENT TO CONSTRUCTION MANAGER AT RISK
AGREEMENT (this “Third Amendment”) is made as of May 6, 2013, between the City of
Avondale, an Arizona municipal corporation (the “City”) and FCI Constructors, Inc., a Colorado
corporation (the “Construction Manager”).
RECITALS:
A.
The City and the Construction Manager entered into that certain Construction
Manager at Risk Agreement, dated June 16, 2008, for complete construction services, including
pre-construction phase general services (the “Pre-Construction Phase Work”), related to an
approximately 17,000 SF public safety facility (later determined to be 18,613 SF) on the Estrella
Mountain Community College Campus, consisting of apparatus bays, living quarters, office
space, classroom space and other spaces as deemed necessary by the City (the “Original
Agreement”).
B.
The Original Agreement was amended once on May 4, 2009, to establish a
not-to-exceed price for the Pre-Construction Phase Work and to extend the term of the
Agreement (the “First Amendment”).
C.
Due to the severe economic downturn, the Project budget was substantially
revised. The City and the Construction Manager agreed to bifurcate the construction of the
Project into two phases. Phase One of the work was to (i) include (a) all of the exterior
improvements to the public safety facility as anticipated and (b) all of the interior finishes and
improvements related to the police space and the classroom space and (ii) exclude interior
finishes and improvements related to the fire department spaces (collectively, “Phase One”).
The Parties agreed that the fire department spaces would be left in a “shell” condition and in a
manner that would make it convenient to complete the interior finishes and improvements related
to the fire department spaces at a later date (collectively, “Phase Two”).
D.
The Original Agreement was amended a second time, on December 15, 2009, to
establish the guaranteed maximum price and the date of substantial completion for Phase One
and to amend the Pre-construction Phase compensation to the Construction Manager (the
“Second Amendment”). The Original Agreement, the First Amendment and the Second
Amendment are collectively referred to herein as the “Agreement.” Unless otherwise set forth
herein, all capitalized terms used in this Third Amendment shall have the meanings ascribed to
them in the Agreement.
E.
Economic conditions have improved sufficiently such that the City has
determined that it is able to complete Phase Two of the Project.
1946822.2
F.
Pursuant to Section 3.4 of the Agreement, the City and the Construction Manager
may agree to a guaranteed maximum price and a date of substantial completion for Phase Two.
G.
The Construction Manager has submitted, and the City has accepted, the GMP
Proposal for Phase Two. Accordingly, the City and the Construction Manager desire to amend
the Agreement to establish the guaranteed maximum price and a date of substantial completion
for Phase Two.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated
herein by reference, the following mutual covenants and conditions, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the City and the
Construction Manager hereby agree as follows:
1.
Guaranteed Maximum Price. The Construction Manager’s guaranteed maximum
price for the Work related to Phase Two (the “Phase Two GMP”), including the Cost of the
Work as defined in Article 8 of the Agreement (excluding the portion of the Pre-Construction
Phase Compensation related to Phase One set forth in Section 7.1, but specifically including the
Pre-Construction Phase Compensation related to Phase Two set forth in Section 7.1 and the
Construction Phase Compensation related to Phase Two as set forth in Section 7.2) is hereby
agreed to be $1,803,722.00, including an owner’s contingency amount of $25,000.00. The Phase
Two GMP is the total compensation from the City to the Construction Manager for the
performance of the Work for Phase Two in accordance with Contract Documents set forth in the
Agreement and pursuant to any of the following documents, as applicable:
1.1
Assumptions and Clarifications, five pages, dated April 17, 2013, attached
hereto as Exhibit 1 and incorporated herein by reference.
1.2
A Schedule of Work, dated April 18, 2013, three pages, attached hereto as
Exhibit 2 and incorporated herein by reference.
1.3
Allowances, one page, dated April 17, 2013, attached hereto as Exhibit 3
and incorporated herein by reference.
1.4
Alternates, one page, dated April 17, 2013, attached hereto as Exhibit 4
and incorporated herein by reference.
1.5
Specific Exclusions, one page, dated April 17, 2013, attached hereto as
Exhibit 5 and incorporated herein by reference.
2.
Exhibits for Agreement.
included in the Agreement:
The following exhibits are hereby approved and
2.1
Exhibit B-1 – Construction Manager’s Guaranteed Maximum Price
Proposal for Phase Two.
1946822.2
2
2.2
Exhibit C-1 – Scope of Work for Phase Two.
2.3
Exhibit D-1 – List of Design Documents for Phase Two.
3.
Substantial Completion. The date of Substantial Completion of the Work for
Phase Two is October 21, 2013.
4.
Pre-Construction Services Amount Increased. Subsection 7.1(B) of the Original
Agreement is hereby amended to increase the not-to-exceed amount for the Pre-construction
Phase from $38,992.00 to $58,761.00, which amounts are part of, and not to be paid in addition
to, the Phase Two GMP.
5.
Agreement Affirmed. The Agreement is hereby affirmed and ratified and, except
as expressly modified herein, all terms and conditions of the Agreement shall remain in full force
and effect.
6.
Non-Default. By executing this Third Amendment, the Construction Manager
affirmatively asserts that (i) the City is not currently in default, nor has been in default at any
time prior to this Third Amendment, under any of the terms or conditions of the Agreement and
(ii) any and all claims, known and unknown, relating to the Agreement and existing on or before
the date of this Third Amendment are forever waived.
7.
Conflicts of Interest. This Third Amendment may be cancelled for a conflict of
interest pursuant to ARIZ. REV. STAT. § 38-511.
[SIGNATURES ON FOLLOWING PAGES]
1946822.2
3
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
and year first written above.
“City”
CITY OF AVONDALE, an Arizona
municipal corporation
Charles P. McClendon, City Manager
ATTEST:
Carmen Martinez, City Clerk
(ACKNOWLEDGMENT)
STATE OF ARIZONA
)
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before on
, 2013,
by Charles P. McClendon, the City Manager of the CITY OF AVONDALE, an Arizona
municipal corporation, on behalf of the City of Avondale.
Notary Public in and for the State of Arizona
(affix notary seal here)
[SIGNATURES CONTINUE ON FOLLOWING PAGE
1946822.2
4
“Construction Manager”
FCI CONSTRUCTORS, INC., a Colorado
corporation
By:
Name:
Title:
(ACKNOWLEDGEMENT)
STATE OF
COUNTY OF
)
) ss.
)
This instrument was acknowledged before me on
, 2013,
by____________________________, the ____________________ of FCI CONSTRUCTORS,
INC., a Colorado corporation, on behalf of the corporation.
Notary Public in and for the State of
(affix notary seal here)
1946822.2
5
EXHIBIT 1
TO
THIRD AMENDMENT
TO
CONSTRUCTION MANAGER AT RISK AGREEMENT
BETWEEN
THE CITY OF AVONDALE
AND
FCI CONSTRUCTORS, INC.
[Phase Two Assumptions and Clarifications]
See following page(s).
1946822.2
EXHIBIT 2
TO
THIRD AMENDMENT
TO
CONSTRUCTION MANAGER AT RISK AGREEMENT
BETWEEN
THE CITY OF AVONDALE
AND
FCI CONSTRUCTORS, INC.
[Phase Two Schedule of Work]
See following page(s).
1946822.2
EXHIBIT 3
TO
THIRD AMENDMENT
TO
CONSTRUCTION MANAGER AT RISK AGREEMENT
BETWEEN
THE CITY OF AVONDALE
AND
FCI CONSTRUCTORS, INC.
[Phase Two Allowances]
See following page(s).
1946822.2
EXHIBIT 4
TO
THIRD AMENDMENT
TO
CONSTRUCTION MANAGER AT RISK AGREEMENT
BETWEEN
THE CITY OF AVONDALE
AND
FCI CONSTRUCTORS, INC.
[Phase Two Alternates]
See following page(s).
1946822.2
EXHIBIT 5
TO
THIRD AMENDMENT
TO
CONSTRUCTION MANAGER AT RISK AGREEMENT
BETWEEN
THE CITY OF AVONDALE
AND
FCI CONSTRUCTORS, INC.
[Phase Two Specific Exclusions]
See following page(s).
1946822.2
EXHIBIT B-1
TO
CONSTRUCTION MANAGER AT RISK AGREEMENT
BETWEEN
THE CITY OF AVONDALE
AND
FCI CONSTRUCTORS, INC.
[Construction Manager’s Phase Two Guaranteed Maximum Price Proposal]
See following page(s).
1946822.2
EXHIBIT C-1
TO
CONSTRUCTION MANAGER AT RISK AGREEMENT
BETWEEN
THE CITY OF AVONDALE
AND
FCI CONSTRUCTORS, INC.
[Phase Two Scope of Work]
See following page(s).
1946822.2
EXHIBIT D-1
TO
CONSTRUCTION MANAGER AT RISK AGREEMENT
BETWEEN
THE CITY OF AVONDALE
AND
FCI CONSTRUCTORS, INC.
[Phase Two List of Design Documents]
See following page(s).
1946822.2