Chesapeake€¦ · Mary Ann Saunders Assistant to the City Manager Lin Olsen Executive Director...
Transcript of Chesapeake€¦ · Mary Ann Saunders Assistant to the City Manager Lin Olsen Executive Director...
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
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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
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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
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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
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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
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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
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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
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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
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GREAT BRIDGE BATTLEFIELD
WATERWAYS HISTORY FOUNDATION
ByChairman
ByExecutive Director
ByExecutive Secretary
Approved as to form
Assistant City Attorney
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