ChesapeakeIRGINIA 7

Office of the City Attorney306 Cedar Road

Chesapeake Virginia 23322757 3826586

DOCKET ITEM Fax 757 3828749

CA3A

November 19 2015

TO Mayor Krasnoff ViceMayor de Triquet and Members of the City Council

Re RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE AFIFTH AMENDMENT TO A MEMORANDUM OF UNDERSTANDING

RELATING TO COST SHARING PROCUREMENT ANDADMINISTRATION OF CONSTRUCTION OF THE VISITOR CENTERAT BATTLEFIELD PARK

Please find enclosed a resolution authorizing the City Manager to execute a proposedFifth Amendment of Memorandum of Understanding by and between the City of Chesapeakeand the Great Bridge Battlefield Waterways History Foundation Foundation for sharing ofadditional costs required to award the base bid contract for the construction of the BattlefieldPark Visitor Center This amendment arises out of the discussion at the November 17 2015work session and negotiation between the City and the Foundation

The Fourth Amendment of Memorandum of Understanding dated February 25 2015included a costshare of120000000on the part of the Foundation and110138151 on thepart of the City Pursuant to the Fourth Amendment the Foundation deposited100000000inan escrow account and committed to expending 20000000to purchase in full goods andservices for the construction of the building offered by donors at reduced prices Due to the basebid coming in higher than anticipated new cost allocations have been negotiated The proposedFifth Amendment of Memorandum of Understanding reflects the following revised terms andadditional contributions by both parties as set out below The total additional contributions bythe Foundation will be in the amount of25800000and by the City in the amount of60300000

Foundation shall deposit an additional 20000000to the existing escrow accountrepresenting a negotiated cost sharing of the apparent low responsible and responsive bidfor the base bid and a 5 contingency Such funds must be deposited prior to award ofthe construction contract

The City of Chesapeake adheres to the principles of equal employment opportunityThis policy extends to all programs and services supported by the City

Foundation shall also either secure a new donor for windows or purchase in full suchwindows in a timely manner consistent with the construction schedule The estimatedcost for such windows is4800000

Foundation shall also pay the amount of1000000directly to telecommunicationsproviders for telecommunications work associated with the visitor center

City shall appropriate additional funds not to exceed 60300000said sum representingcost sharing of the pending construction contract award for the base bid and a 5contingency

Funds shall be expended in the following order grant funds Foundation fundsappropriated from the escrow account and then City funds Any excess fundsappropriated for the project would be deappropriated and reallocated by the City at itsdiscretion except that the escrow agreement provides that any interest accrued on theescrow account will be owed to the Foundation

Notwithstanding the above order of expenditure funds from the Foundation escrowaccount will not be used to pay for9900000estimated for project management andconstruction services

The escrow agreement dated February 25 2015 shall be amended for consistency withthe above terms

The City Manager and the Foundation are in agreement with these terms The resolutionwill be accompanied by a request for appropriation of the additional funds required for the basebid

Please advise if you have any questions or comments with regard to the proposedamendment

Very truly yours

Jan L Proctor

City Attorney

JLPhvm

Enclosure

cc James E Baker City ManagerEric J Martin Director Public Works DepartmentMary Ann Saunders Assistant to the City ManagerLin Olsen Executive Director of Great Bridge Battlefield Waterways

2

RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A FIFTHAMENDMENT TO A MEMORANDUM OF UNDERSTANDING RELATING TOCOST SHARING PROCUREMENT AND ADMINISTRATION OFCONSTRUCTION OF THE VISITOR CENTER AT BATTLEFIELD PARK

WHEREAS the Great Bridge Battlefield Waterways History Foundation

Foundation a Virginia nonprofit nonstock corporation and the City of Chesapeake entered

into a Memorandum of Understanding MOU dated August 13 2003 which contemplated

cooperative fundraising grant writing and administration planning design and construction

of a historic park and visitor center commemorating the Battle of Great Bridge and the

Albemarle Chesapeake and Dismal Swamp Canals and

WHEREAS subsequent amendments to the MOU dated November 10 2004 June

28 2006 October 26 2009 and February 25 2015 provided additional terms of sources of

funding planning design and estimated construction costs of the park and visitor center and

WHEREAS the park improvements have been constructed with funding and donated

inkind services from the City and the Foundation and

WHEREAS bids received by the City for construction of the visitor center and an

appropriate contingency amount have exceeded estimated costs and those funds identified by

the MOU and its amendments as well as the escrow agreement executed by the City and the

Foundation on February 25 2015 and

WHEREAS a draft Fifth Amendment of MOU provides for additional cost sharing

and amended terms of the previously executed Fourth Amendment of MOU and escrow

agreement dated February 25 2015 and

WHEREAS if such Fifth Amendment of MOU is approved City Council will take

separate action to appropriate such funds for purposes of construction and project relatedCity Attorneys OfficeCity of ChesapeakeMunicipal Center306 Cedar Road

Chesapeake Virginia23322

757 3826586Fax 757 3828749

expenses and accept materials donated or solicited by the Foundation for the construction of

the visitor center and

WHEREAS upon completion of construction of the visitor center the City and

Foundation intend to negotiate a mutually acceptable lease agreement to be approved by City

Council or other legally permissible arrangement for the operation and maintenance of the

visitor center consistent with essential terms previously negotiated in the governance

agreement dated February 25 2015

NOW THEREFORE BE IT RESOLVED by the Council of the City of

Chesapeake Virginia as follows

1 The City Council hereby approves the Fifth Amendment of MOU associated

with the cost sharing procurement and administration of construction of the visitor center

2 The City Manager is authorized to execute the Fifth Amendment of the MOU

in substantially the same form as attached hereto with such completions omissions

insertions and changes as approved by the City Attorney

ADOPTED by the Council of the City of Chesapeake Virginia this day of

2015

APPROVED

Mayor

ATTEST

City Attorneys Office Clerk of the CouncilCity of ChesapeakeMunicipal Center306 Cedar Road

2

Chesapeake Virginia23322

757 3826586Fax 757 3828749

5TH AMENDMENT OF MEMORANDUM OF UNDERSTANDING

THIS 5 AMENDMENT OF MEMORANDUM OF UNDERSTANDING is entered

into this day of 2015 by and between the GREAT BRIDGE

BATTLEFIELD WATERWAYS HISTORY FOUNDATION a Virginia nonprofit nonstock

corporation hereinafter referred to as Foundation and the CITY OF CHESAPEAKE

VIRGINIA hereinafter referred to as City

WHEREAS the Foundation and City entered into a Memorandum of Understanding on

August 13 2003 and Amendments thereto on November 10 2004 June 28 2006 October 26

2009 and February 25 2015 and

WHEREAS the chartered purposes of the Foundation are to plan promote and assist in

the development and operation of a historic park and visitor center commemorating the Battle of

Great Bridge and the Albemarle Chesapeake and Dismal Swamp Canals and to raise funds for

such purposes and

WHEREAS both the City and Foundation desire to further acknowledge their common

interests and to enter into this Fifth Amendment of their Memorandum of Understanding to

express their respective current roles and undertakings in the construction of the visitor center as

shown on the project plans dated February 27 2015 Phase 1 and associated construction

project related expenses projectrelated expenses including but not limited to the direct

construction contract costs and contingencies the cost of publication of the invitation for bids for

the construction procurement solicitation architectural and engineering design fees other than

those incurred prior to the award of the construction contract fees of a consultant if any

selected by the City to perform project management and construction inspection and utility work

1

or costs arising from the project during the period from execution of this amendment to the final

completion of Phase 1 and

WHEREAS bids received by the City for Phase 1 have exceeded the estimated

construction cost and require additional cost sharing and amended terms to those contemplated

by the 4 Amendment of Understanding Governance Agreement and Escrow Agreement as

executed by the parties on February 25 2015

NOW THEREFORE THIS MEMORANDUM WITNESSETH

1 The foregoing recitals are incorporated herein by reference

2 The City will be responsible for the procurement and oversight of the construction

contract and project related expenditures for the construction of Phase 1 The construction

contract and projectrelated expenditures will be administered and supervised by the Citys

Department of Public Works Facilities Construction Division except that the City may engage a

consultant to perform project management as a project related expense to supplement City

project management staff The City may also engage a third party to perform construction

inspection services which may or may not be the same firm providing supplemental project

management services as a as a project related expense Representatives of the City and the

Foundation will periodically meet during the construction period Representatives of the

Foundation should notify the Project Manager and the City Attorney of any suspected fraud

waste abuse or misrepresentation by the contractor subcontractor or supplier associated with

Phase 1 Representatives of the Foundation should notify the Citys Department of Public

Works Construction Facilities Manager and the City Attorney of any suspected fraud waste

abuse or misrepresentation by a consultant providing project management or inspection services

2

3 Pursuant to the Escrow Agreement the Foundation has previously deposited

100000000into an escrow account Prior to award of the construction procurement

solicitation to the apparent low responsible and responsible bidder for the base bid only

Foundation shall deposit an additional 20000000into the aforesaid escrow account for the

purposes of construction costs and project related expenses to be governed by the terms of this

amendment and any non conflicting terms of the escrow agreement

a The Foundation shall also contribute a minimum of20000000to Phase

1 by directly purchasing in full those goods or services for construction that have

been sourced by the Foundation at a discount and are included in Section

01012A Table of Owner Furnished Materials and Labor of the draft Invitation

for Bids attached and any subsequent revisions thereto including bid addenda if

any In the event that the full amount of20000000is not expended for the

above stated purpose the Foundation shall contribute the remaining balance of

this sum to the escrow account governed by the escrow agreement The

Foundation shall also secure a new donor for the windows contemplated for

donation in Section 01012A or purchase in full such windows at its own expense

an estimated cost of48000 All goods and services contemplated by Section

01012A must be provided to the construction contractor in accordance with the

requirements of the construction schedule

b In addition the Foundation shall pay the separate amount of1000000

directly to telecommunication providers for telecommunications work as an

additional project related expense

3

4 The City previously appropriated funds in the amount of110138151 to Phase

1 less construction project related expenses exclusive of architectural and engineering design

fees incurred prior to the award of the construction contract expended prior to the start of

construction Subject to appropriation the City will commit additional funds not to exceed

60300000to Phase 1 provided that any unexpended contingency funds or cost savings

realized by the completion of construction of Phase 1 may be deappropriated and redesignated

to other projects or accounts by the City at its sole discretion

5 All construction costs and project related expenses including but not limited to

change orders shall be expended from City and Foundation funds If the contingency amounts

allowed by the contributions of the City and Foundation pursuant to this amendment are

insufficient to complete the construction of Phase 1 the parties will negotiate cost sharing of

such completion costs in good faith and any further contribution of funds by the City is subject

to appropriation

6 Construction costs and project related expenses including change orders shall be

paid first from the balance of any remaining grant funds until such funds are exhausted for

allowed purposes The120000000and such additional amount as may be deposited by the

Foundation in escrow as provided by paragraph 3 deposited by the Foundation shall be used

next for remaining construction costs and project related expenses including change orders

except that such funds shall not be applied to 9900000in project related costs that the City

shall assume toward project management and construction inspection services City funds shall

be used last for any remaining construction costs and project related expenses including change

orders pursuant to paragraph 4

4

7 The Foundation shall receive notice of the execution of any change orders Prior

to the commitment to proceed with changes in the scope of work or execution of change orders

the Project Manager will make a determination that there are available funds appropriated by the

City Council and not designated for any other purpose or exposure adequate to pay the estimated

or actual additional costs Additional construction costs and project related expenses including

but not limited to direct construction costs labor and materials contractorsextended overhead

and architectssupplemental design fees that are either 1 requested by the Foundation for

aesthetic purposes or not related to the constructability of Phase 1 as originally designed that

may be approved by the Citys Project Manager or 2 additional work arising from the failure or

nonperformance of work presently anticipated to be performed by donors engaged by the

Foundation shall be paid by the Foundation to the City promptly upon demand and must be

appropriated by City Council prior to the issuance of change orders or other actions that create

possible financial obligations on the part of the City

8 After Phase 1 is fully constructed it is anticipated that it will be owned by the

City and leased to the Foundation subject to negotiation of a mutually acceptable lease

agreement and compliance with all legal requirements for the leasing of public property by a

municipal corporation unless the parties shall enter into another legally permissible arrangement

for the operation and maintenance of the visitor center Any lease or other arrangement for the

operation and maintenance of the visitor center must be consistent with the Citys lease of the

real property from the Department of the Army for the Great Bridge Battlefield and Waterways

Historic Park and Recreational Trail and any requirements necessary to maintain the tax exempt

status of any bonds for which bond proceeds were used in the construction of the park or the

visitor center

5

9 Subject to formal acceptance of donations by the City Council and acceptance of

the work by the Citys Project Manager materials donated and the work constructed by donors

for Phase 1 will be owned by the City unless otherwise provided by the terms of any future lease

or other agreement as to operation and maintenance of the visitor center

10 So as not to prejudice the procurement process the terms of this amendment shall

remain confidential except as required by law as necessary to implement this amendment or as

agreed upon by the parties until the construction contract is awarded

11 The terms of this Fifth Amendment of Memorandum of Understanding shall take

precedence over any conflicting terms in the Memorandum of Understanding or its

Amendments and the Governance Agreement and Escrow Agreement as executed by the parties

on February 25 2015

12 The Escrow Agreement dated February 25 2015 is hereby amended to replace all

references to Fourth Amendment of Memorandum of Understanding with this Fifth Amendment

of Memorandum of Understanding

WITNESS the following signatures and seals

CITY OF CHESAPEAKE VIRGINIA

ByCity Manager

ATTEST

City Clerk

6

GREAT BRIDGE BATTLEFIELD

WATERWAYS HISTORY FOUNDATION

ByChairman

ByExecutive Director

ByExecutive Secretary

Approved as to form

Assistant City Attorney

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