HomeMy WebLinkAboutAgreement A-22-160 with Kitchell CEM Inc..pdf Agreement No. 22-160
1 AMENDMENT NO. 3 TO AGREEMENT FOR CONSTRUCTION MANAGEMENT SERVICES
2 THIS AMENDMENT NO. 3 TO AGREEMENT (Third Amendment) is made and entered
3 into this 19th day of April , 2022, by and between the County of Fresno
4 (OWNER or COUNTY) and Kitchell Capital Expenditure Managers, Inc. (CONSULTANT).
5 Recitals:
6 WHEREAS, the COUNTY and CONSULTANT entered into an Agreement dated
7 December 16, 2014 identified as Agreement No. 14-736, incorporated herein by reference (the
8 Agreement), for CONSULTANT to provide construction management services for the West
9 Annex Jail project; and
10 WHEREAS, the COUNTY and CONSULTANT entered into the First Amendment to the
11 Agreement dated August 4, 2020 identified as Agreement No. 14-736-1, incorporated herein by
12 reference (First Amendment), which provided for an increase of $579,739 to the maximum
13 Extra Services compensation amount; and
14 WHEREAS, the COUNTY and CONSULTANT entered into the Second Amendment to
15 the Agreement dated May 25, 2021 identified as Agreement No. 14-736-2, incorporated herein
16 by reference (Second Amendment), which provided for an increase of $1,039,532 to the
17 maximum Extra Services compensation amount; and
18 WHEREAS, the additional $1,039,532 amount provided by the Second Amendment
19 increased the maximum Extra Services allocation to $2,695,666, and increased the maximum
20 Total Fee amount under the Agreement to $6,419,518; and
21 WHEREAS, since the date of approval of the Second Amendment, additional delays to
22 the construction schedule, including resolution of longstanding issues to obtain final approval
23 from the Office of State Fire Marshal (OSFM) of the plans for the project's fire/smoke control
24 systems, and the subsequent need to address issues of a mechanical nature regarding
25 inconsistencies in OSFM's directions pertaining to implementation of the physical
26 improvements required by those plans, have resulted in the need to extend further the period
27 for CONSULTANT's continued provision of construction phase services through final OSFM
28 approval; and
1
1 WHEREAS, OWNER and CONSULTANT now desire to increase the maximum Extra
2 Services allocation payable under the Agreement by an additional $539,757, in order to ensure
3 adequate funding to compensate CONSULTANT for continuing to provide construction
4 management staff for the anticipated duration of the extended construction schedule and
5 through the post-construction ("project completion") phase, including but not limited to the
6 SB1022 State audit performed by the Board of State and Community Corrections (BSCC); and
7 WHEREAS, the increase of $539,757 to the maximum Extra Services allocation is the
8 estimated amount needed to compensate CONSULTANT for continuing to provide construction
9 management services for such additional time as is required, up to 28 weeks (through July 31,
10 2022); and
11 WHEREAS, the increase of $539,757 is based upon the "average per week fee" of
12 $19,991 listed in Exhibit F-1 (attached to this Amendment No. 3 and incorporated by this
13 reference), multiplied by the projected maximum number of additional weeks (28) that may be
14 required for completion of CONSULTANT's services; provided, however, that it is expressly
15 understood and acknowledged by the Parties that the actual amount of compensation paid
16 under the Agreement as hereby amended will continue to be governed by the invoices
17 submitted by CONSULTANT, based on the rates listed in Exhibit A to the original Agreement
18 (and subject to any adjustments in the interim pursuant to Paragraph V.A.2 thereof); and
19 WHEREAS, approval of this Amendment No. 3 will increase the maximum amount
20 payable to CONSULTANT for Extra Services to $3,235,423, and will increase the maximum
21 Total Fee amount payable to CONSULTANT to $6,959,275, and
22 WHEREAS, approval of this Amendment No. 3 will provide for an extension to the
23 Agreement's expiration date, by one year, through and including December 31, 2023, in order
24 to continue CONSULTANT's services through the BSCC audit period for the project.
25 NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of
26 which is hereby acknowledged, the parties agree as follows:
27 1. That existing County Agreement No. 14-736, Article IV, Section A, Paragraph 1,
28 at Page twenty-three (23), Lines twenty-one (21) through twenty-three (23), is hereby deleted in
2
1 its entirety and replaced with the following paragraph:
2 "Notwithstanding any other provision in this Agreement, the Total Fee (Basic Fee and
3 Extra Services Allocation) for the services required under this Agreement shall not exceed a
4 total amount of$6,959,275."
5 2. That existing County Agreement No. 14-736, Article IV, Section C, Paragraph 1,
6 at Page twenty-four (24), Line twenty-four (24), beginning with the word "There" and ending on
7 Page twenty-five (25), Line three (3) with the word "exceeded" is hereby deleted in its entirety
8 and replaced with the following paragraph:
9 "There will be an additional maximum allocation of $3,235,423 to pay for authorized
10 Extra Services. Payment of Extra Services in excess of $3,235,423 is unauthorized and can
11 only be made pursuant to a prior written amendment to this Agreement when the cumulative
12 total of the Basic Fee and Extra Services allocation would thereby be exceeded. The COUNTY
13 Representative shall have the discretion to adjust in writing the Basic Fee and Extra Services
14 limits as long as the total Agreement amount of$6,959,275 is not exceeded."
15 3. That existing County Agreement No. 14-736, Article XXII ("TIME OF
16 COMPLETION)" Section C, at page 41, lines 21 through 24, is hereby deleted in its entirety
17 and replaced with the following sentence: "CONSULTANT shall complete all services required
18 under this Agreement prior to its expiration, and the term of this Agreement is hereby extended
19 and shall continue in full force and effect through December 31, 2023, at which time it shall
20 expire, unless it is further extended, in writing, by the Director of the Department of Public
21 Works and Planning or his/her designee, for one (1) additional year, upon the same terms and
22 conditions as set forth herein, or it is terminated earlier in accordance with the provisions of
23 Article XXIII."
24 All other terms, conditions, mutual covenants, and promises contained in the
25 Agreement, as previously amended, shall remain in full force and effect, except as hereinabove
26 amended by this Third Amendment. COUNTY and CONTRACTOR agree that this Third
27 Amendment is sufficient to amend the Agreement and that upon execution of this Third
28 Amendment, the original Agreement, together with the First Amendment, the Second
3
1 Amendment and this Third Amendment shall collectively be considered as comprising the
2 entire Agreement.
3 The Agreement, as hereby amended, is ratified and continued. All provisions, terms,
4 covenants, conditions and promises contained in the Agreement, and not amended herein,
5 shall remain in full force and effect.
6
7 [SIGNATURE PAGE FOLLOWS]
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
1 The parties are executing this Amendment No. 3 on the date set forth in the introductory
2 clause.
3
4 CONSULTANT COUNTY OF FRESNO
5
6 B � �
7 W dy Coh n, President, Brian Pacheco, Chairman of the Board
Kitchell Ca Ital Expenditure Managers, Inc. of Supervisors of the County of Fresno
8 2450 Venture Oaks Dr. Suite 500
Sacramento, CA 95833
9
10 ATTEST:
11 Bernice E. Seidel
Clerk of the Board of Supervisors
12 County of Fresno, State of California
13 By_
14 Deputy
15
16
17
18
19
I
20
21
FOR ACCOUNTING USE ONLY
22
ORG No. 8845, 8846
23 Account No. 8150
Fund No. 0400
24 Subclass No. 10045, 10046
Program No. 91157, 91158
25
26
27
28
5
EXHIBIT F -1
KITCHELL
Average Construction Management and Inspection Fee per Week: The below
average per week fees represent construction manager, office staff and inspection
staff. The below average per week fees exclude specialized basic services such as
design phase estimating, value engineering, life cycle costs reviews and
constructability reviews.
Extension of Services beyond Original Contract (July 31, 2022) $19,991/wk