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8.3 Right-of-Way Acquisition Services for East Magnolia CITY OF SALINA REQUEST FOR CITY COMMISSION ACTION DATE 3/28/11 TIME 4:00 P.M. AGENDA SECTION NO: ORIGINATING DEPARTMENT: ITEM NO: Page 1 DEPARTMENT OF PUBLIC WORKS FISCAL APPROVAL: BY: FINAL APPROVAL: 8 3 BY: Daniel R. Stack BY: ITEM: Right-of-way acquisition services agreement with Land Company Real Estate Services, Inc. for the East Magnolia Road Improvements, City Project No.1 0-2808. BACKGROUND: Right-of-way appraisal and acquisition will soon begin for the East Magnolia Road Improvements project. This process must follow the "Uniform Relocation Assistance and Real Property Acquisition Policies act of 1970." City staff solicited qualifications and estimated costs from three right-of-way acquisition companies who were pre-approved by the Kansas Department of Transportation for acquisition on federally funded projects. The East Magnolia Road project includes $1.4 million dollars of federal funding. City staff then interviewed the three firms and chose Land Company Real Estate Services, Inc. of Bonner Springs, Kansas, whose estimate was also the most cost-effective of the three proposals. This company submitted the best proposal and has very good experience and references for both the acquisition and appraisal services for the 27 tracts on East Magnolia. William (Bill) Flatt, licensed Kansas appraiser with 20 years experience, will perform the appraisal services. John T. Amrein, licensed real estate agent and firm owner, will perform the acquisition services. The City Attorney, who has been involved to varying degrees with the City's right-of-way acquisition in the past, will provide general acquisition oversight and assist City staff with document preparation. The City Attorney has reviewed the attached professional services agreement. FISCAL NOTE: The 2010-2014 Capital Improvement Program includes selling bonds to finance the balance of the project costs above the $1.4 million. These costs include the consultant design fee, construction services, right-of-way and easement acquisition, utility relocations, testing, financing and construction costs. The total project costs are currently estimated at $4.5 million. CONFORMANCE WITH STRATEGIC PLAN: Goal #3: The city will provide the highest quality of services, consistent with governing body direction, available resources and staff commitment to quality. Goal #6: The city will work to make Salina a city that has connectivity physically and socially. RECOMMENDED ACTION: Staff recommends that the City Commission approve the Agreement with Land Company Real Estate Services, Inc. of Bonner Springs, Kansas for right-of-way acquisition services for the East Magnolia Road Improvements in an amount not to exceed $29,950, City Project No.1 0-2808. Cc: John Amrein, Land Company Real Estate Services, Inc. AGREEMENT BETWEEN THE CITY OF SALINA, KANSAS and Land Company Real Estate Services, Inc. for ENGINEERING SERVICES This Agreement is entered into on the latest date of execution shown on the signature page by and between the City of Salina, Kansas, (the "CITY") and Land Company Real Estate Services, Inc., a Kansas corporation, (the "CONSUL TANT"). Recitals A. The CITY owns and operates the City of Salina Street network which specifically pertains to the East Magnolia Street Improvement Project. B. The CITY desires to contract for the Appraisal and Easement Negotiation services necessary to assure Acquisition of Rights of Way and Temporary Construction Easements in compliance with all federal and state regulations. C. The CONSULTANT has the requisite qualifications and experience to perform the services desired by the CITY and desires to perform those services pursuant to the terms of this Agreement. The parties therefore agree and covenant: 1. Scope of Services. The CONSULTANT agrees to perform the services outlined in the attached and incorporated Exhibit A. 2. Term. The CONSULTANT agrees to perform the services according to the timeframe described in Exhibit B, subject to prior termination pursuant to the terms of this Agreement. 3. Compensation. The CITY agrees to compensate the CONSULTANT on the basis of the actual hourly rates and reimbursable expenses shown on the CONSULTANT's fee schedule attached and incorporated as Exhibit C, in an amount not to exceed $29,950.00. 4. Non-appropriation. In the event that this Agreement anticipates work spanning multiple budget years for the City, it is subject to further appropriation by the CITY's governing body for future fiscal budget years. If the CITY's governing body does not appropriate the funds necessary to compensate the CONSULTANT for services to be provided pursuant to this Agreement in the future fiscal years, the CITY shall so notify the CONSULTANT and this Agreement shall be null and void for purposes of the fiscal budget year(s) affected by the decision of the governing body not to appropriate. 5. Invoices. CONSULTANT agrees to submit to the CITY detailed invoices at least monthly for work performed and reimbursable expenses actually 1 incurred. The invoices shall identify the personnel performing the work, the date of the work, the work performed and the time required to the one-tenth of an hour. Charges for subcontracted work will be supported with similar documentation. Charges for reimbursable expenses will specifically identify the type and amount of each expense in a manner consistent with the classifications of reimbursable expenses set forth in Exhibit C. 6. Payment. Invoices will be due and payable within 45 days of receipt by the CITY. If the CITY disputes any items in CONSULTANT's invoice for any reason, the CITY may temporarily delete the disputed item and pay the remaining amount of the invoice. The CITY will promptly notify CONSULTANT and request clarification and/or correction. Following resolution of any dispute, CONSULTANT will include the disputed item as resolved on a subsequent invoice. The CONSULTANT retains the right to assess the CITY interest at the rate of up to one percent (1 %) per month on undisputed invoices which are not paid within 45 days of receipt by the CITY. 7. Nonperformance. If either party fails to comply with any term of this Agreement within 10 days after written notice to comply has been mailed by the non- defaulting party to the defaulting party, such failure shall be deemed an immediate breach of this Agreement. In such case, the non-defaulting party may pursue against the defaulting party such remedies as provided by law or in equity, including without limitation, the right to specifically enforce this Agreement. In addition, the non-defaulting party may recover its costs and reasonable attorneys' fees incurred in any action related to such breach. In the event of such termination upon the default of the CONSULTANT, the CONSULTANT shall not be entitled to further compensation from the CITY for work performed or costs sustained following the date of termination. 8. Termination. Either party may terminate this Agreement, with or without cause, upon 30 days advance written notice to the other party. In the event of such termination, the CONSULTANT shall be compensated for such services as have been performed through the date of termination. 9. Relationship. It is expressly understood that CONSULTANT in performing services under this Agreement, does so as an independent contractor. The City shall neither have nor exercise any control or direction over the methods by which CONSULTANT performs its services hereunder. The sole interest and responsibility of the City is to see that the services covered by this Agreement are performed and rendered in a competent, efficient, and satisfactory manner. CONSULTANT shall be exclusively responsible for all taxes, withholding payments, employment-based benefits, deferred compensation plans, including but not limited to its workers compensation and social security obligations, and the filing of all necessary documents, forms, or returns pertinent to the foregoing. 10. Iniury to Persons or Damaae to Property. CONSULTANT acknowledges responsibility for any injury to person(s) or damage to property caused by its employees or agents in the performance of its duties under this Agreement and shall immediately notify the City's Risk Management Department at (785) 309-5705 in the event of such injury to person(s) or damage to property. 2 11. Indemnification. CONSULTANT agrees to indemnify and save harmless the City, its officials, agents, servants, officers, directors and employees from and against all claims, expenses, demands, judgments and causes of action for personal injury or death or damage to property where, and to the extent that, such claims, expenses, demands judgment or causes or action arise from CONSULTANT's negligent acts. 12. Insurance Reauirements. CONSULTANT shall maintain the following insurance coverage without interruption from the date of the commencement of this agreement until date of final payment and termination of any coverage required to be maintained after final payment Professional Liability - Errors and Omissions The CONSULTANT shall provide Engineers Professional Liability Insurance with limits not less than $500,000, covering the liability of the CONSULTANT and any and all consultants, agents or independent contractors which are employed or retained by the CONSULTANT. The insurer must be acceptable to the City of Salina. In the event coverage provided is a claims made coverage, the insurance shall be maintained for a period of not less than three (3) years after completion of the contract or in lieu thereof purchase of tail coverage (extended reporting period) under which the City of Salina shall be afforded protection. In lieu of the above coverage, the CONSULTANT may provide the described coverage for his own firm in the above amount and submit proof all his consultants, agents and independent contractors have insurance deemed adequate by the City of Salina. Commercial General Liability Insurance CONSULTANT shall provide public liability insurance coverage in an amount no less than $500,000 covering the liability of CONSULTANT and any and all consultants, agents or independent contractors which are employed or retained by CONSULTANT on an occurrence basis. In lieu of the above coverage, CONSULTANT may provide coverage for its own firm in the above amount or an additional amount and submit proof all its consultants, agents and independent contractors have insurance deemed adequate by the City of Salina. Automobile Liability CONSULTANT shall provide coverage protecting CONSULTANT against claims for bodily injury and/or property damage arising out of the ownership or use of any owned, hired and/or non-owned vehicle. Required minimum limits: $500,000 each accident, combined single limits, bodily injury and property damage. Worker's Compensation Before beginning any work, CONSULTANT shall furnish to the City satisfactory proof that he has taken out, for the period covered by the work under this contract, full workers' compensation coverage as required by state law for all 3 persons who he may employ directly, or through subcontractors, in carrying out the work contemplated under this contract, and shall hold the City free and harmless for all personal injuries of all persons who the CONSULTANT may employ directly or through subcontractors. Certificate(s) of Insurance Certificate(s) of Insurance acceptable to the City shall be filed with the City at the time this Agreement is executed. These certificates shall contain a provision that coverage afforded under the policies will not be cancelled or substantially changed until at least thirty (30) days prior written notice has been given to the City and acknowledged. Notice of Claim CONSULTANT, upon receipt of notice of any claim in excess of $1,000 in connection with this Agreement shall promptly notify the Risk Management Department, (785) 309-5705, providing full details thereof, including an estimate of the amount of loss or liability. 13. EaualOpportunity. In conformity with Chapter 13 of the Salina Code, the CONSULTANT and its subcontractors, if any, shall: a. Observe the provision of Chapter 13 of the Salina Code and shall not discriminate against any person in the performance of work under this Agreement; b. Include in all solicitations, or advertisements for employees, the phrase "equal opportunity employer," or a similar phrase to be approved by the city's human relations director; and c. Not discriminate against any employee or applicant for employment in the performance of this Agreement; and d. Include similar provisions in any subcontract under this Agreement. 14. Affirmative Action. The CONSULTANT agrees to abide by the Salina Code Sections 13-132 and 133 relating to affirmative action and affirmative action plans, attached and incorporated herein as Exhibit D. 15. Compliance with Applicable Law. CONSULTANT shall comply with all applicable federal, state, and local law in the performance of its duties under this Agreement. 16. Non-assianable. Due to the unique qualifications and circumstances of the parties, neither the rights nor the responsibilities provided for under this Agreement shall be assignable by either party, either in whole or in part. 17. Feminine-Masculine. Sinaular-Plural. Wherever used, singular shall include the plural, plural the singular, and use of any gender shall include all genders. 4 18. Kansas Law Applies. This Agreement and its validity, construction and performance shall be governed by the laws of Kansas. This Agreement shall be interpreted according to its fair meaning, and not in favor of or against any party. 19. Severability. The unenforceability, invalidity, or illegality of any provision of this Contract shall not render the other provisions unenforceable, invalid, or illegal. 20. Time. Time is of the essence of this Agreement. No extension will be granted unless in writing and signed by the parties. Should the end of a time period fall on a legal holiday, that time period shall extend to 5:00 p.m. of the next full business day. 21. Persons Bound-Copies. This Agreement shall extend to and bind the successors and assigns of the parties hereto, and may be executed in any number of counterparts, each of which shall be deemed an original, or in multiple originals, and all such counterparts or originals shall for all purposes constitute one agreement. 22. Notices. All notices and demands shall be given in writing either by personal service or by registered or certified mail, postage prepaid, and return-receipt requested. Notice shall be considered given when received on date appearing on the return receipt, but if the receipt is not returned within five (5) days, then forty-eight (48) hours after deposit in the mail. Notices shall be addressed as appears below for each party, provided that if any party gives notice of a change of name or address, notices to the giver of that notice shall thereafter be given as demanded in that notice. CITY: Daniel R. Stack, P.E. 300 Ash, P.O. Box 736 Salina, KS 67402 CONSULTANT: John T. Amrein 14799 Woodend Road Bonner Springs, Kansas 66012-7721 23. Typewritten or Handwritten Provisions. Typewritten or handwritten provisions inserted or attached shall supersede all conflicting printed provisions. 24. Meraer Clause. These terms are intended by the parties as a complete, conclusive and final expression of all the conditions of their Agreement. No other promises, statements, warranties, agreements or understandings, oral or written, made before or at the signing thereof, shall be binding unless in writing and signed by all parties and attached hereto. Any amendment to this Contract, including an oral modification supported by new consideration, must be reduced to writing and signed by both parties before it will be effective. 25. Attachments: The following Exhibits and other documents are attached to and made a part of this Agreement: a. Exhibit A: Scope of Services. 5 b. Exhibit B: Schedule. c. Exhibit C: Estimate of Costs. d. Exhibit D: Salina Code Sections 13-132 and 13-133. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective proper officials. Executed by the CONSULTANT this day of 20 Executed by the CITY this day of 20 CITY OF SALINA, KANSAS ("CITY') Land Company Real Estate Services, Inc., ("CONSULTANT") By: By: Aaron Peck, Mayor ATTEST: Title: ATTEST: By: By: Lieu Ann Elsey, City Clerk Title: APPROVED AS TO FORM: APPROVED AS TO FORM: By: By: Title: Title: 6 Exhibit "A" SCOPE OF SERVICES DESCRIPTION OF CONSULTANT'S APPROACH TO REAL ESTATE APPRAISAL AND LAND ACQUISITION SERVICES. Proiect Management Meeting A. Prior to beginning the work, the LAND COMPANY and the City of Salina would review general requirements of work elements such as appraisal approaches for the project. Public Information A. A letter describing the project and introducing the LAND COMPANY as agent for City of Salina is mailed to property owners along the project route. Research Legal Descriptions and Current Title A. Research legal descriptions to check for accuracy and conformance with the Deeds of record, plats, and certificates of survey. B. Research public records to ascertain current ownership. Attention is directed to those tracts which appear to present the potential of becoming problems which may take considerable time to process and clear. (Mortgage releases are prepared and inserted into each parcel file as needed). Initiate Landowner Contact A. Appointments are arranged by telephone to meet landowners in person and on the site, and discuss the general scope of the project and how it will affect their individual parcel. E-l B. The LAND CaMP ANY will name the appraiser assigned to this project and will disclose it to each landowner, and an inspection of the property is scheduled; if the appraisal is waived in the case of a nominal payment parcel or a donation, the appropriate landowner waiver will be obtained. Appraisals A. The appraisal status of, and requirements for, each parcel is confirmed at the project management conference identified by the problem statement. Is an appraisal necessary? Can the short form be used? In the event of a complex situation, should a complete "before and after" (full narrative) report be prepared?, etc. B. Nominal payment parcels, which do not require an appraisal, are listed in a report showing the estimated value of the land and improvements based on sales contained in the project data book for each parcel. The report prepared by the appraiser is submitted to the LAND CaMP ANY's principals or other designated appraiser to determine the consistency of the suggested offering price of each nominal parcel in relation to the sales data collected. Nominal offering price values are then established. C. An appraisal is performed in an appropriate format for each parcel with appraised damages exceeding the minimum limits of value. Appraisal reports will conform to the standards set forth by the Federal Highway Administration Guidelines and the state or local reviewing agency guidelines. D. Upon completion, each appraisal is vigorously reviewed internally by the LAND CaMP ANY'S principals to assure: · The use of the proper appraisal format. · The completeness of each appraisal report. · The accuracy of each appraisal and its mathematical calculations are checked. Corrective actions are taken, where necessary, to complete the process. E. Offerings of compensation are developed for the entire project, and offering price reports are submitted to City of Salina, for their review and approval. Upon approval of the offering price, an offer letter is generated to hand deliver to the property owner. The offer letter contains the total amount of the compensation and the itemized square footage or acreage of the proposed taking. Allocations of damages are provided where needed, in each appraisal report where it applies. Negotiations A. The land acquisition agent is ultimately responsible for condensing a vast amount of information from various project factions and adapting it to his discussions with the landowner. The agent must be prepared to answer a wide range of landowner questions, as well as recognize the limits of his knowledge and the need to obtain accurate answers. Rapport with the landowner is facilitated by extending common courtesies and building a credible relationship based on trnst throughout the negotiation process. E-2 B. The initial function of the land acquisition agent is to provide factual information concerning the project at this primary acquisition interview. During subsequent negotiations, the owner is supplied project related data necessary to fit into the knowledge he has previously acquired, and in sufficient amount to make an effective positive decision concerning the project. The LAND CaMP ANY and City of Salina, would review general requirements of work elements such as title research, appraisals approaches, negotiation procedures, offers of landowner compensation, and relocation and property management for each project. I. This requires that the agent explain the general process by which the compensation was formulated for the project. Typical discussion would include the guidelines used by land value specialists, and the variables that make each acquisition unique. II. The agent reiterates the location of the property and fee taking relative to property lines, physical features, and strnctures. This land description review also provides the agent with an opportunity to verify the accuracy of the title report included in the parcel file. III. Attention is directed to the rights granted to the grantee by the instrnment at hand. Items such as ingress and egress, maintenance of an right way on partial takings, land usage, and damage payments, which are typical points needing to be discussed. IV. The landowner is provided with an offer letter, including a specific price, date, and signature of the authorized land acquisition agent. When presented, the offer of compensation is stated in a brief and straight forward manner. Justification for the offer, or a detailed explanation of the appraisal specifically prepared for the property is appropriate at this time and, if necessary, may be discussed in the meeting. V. Upon landowner acceptance of the offering price, releases, easement, grants, deeds, and any other pertinent conveyance documents are executed for each parcel. Once the Grantor(s) have executed the documents, the agent will arrange for compensation according to procedures adopted by the acquiring agency for this particular project. VI. In an event of a negative reaction to the offer, the agent will note specific objections to the offer and assure the owner that more detailed information is available to discuss, includ- ing appraisal(s) prepared for the property. Recommendations for administrative settlements for amounts greater than the original offering price are submitted with requisite documents for the consideration of the acquiring agency. VII. If the landowners objections concern areas other than the offer of compensation, and the agent is unable to solve the problem with the information provided, the objections will be written down and sent in as well as telephoned in to City of Salina as discovered. C. If amicable settlement is not reached through at least three in person negotiations with each individual property owner. Then all files and documentation containing pertinent information relative to each property, including information gathered by the land acquisition agent, facts concerning the constrnction of the project as they relate to the property in question, and its effect on the taking, the merits and weaknesses of the proposed taking, evaluated on a parcel by parcel basis, E-3 all information is then forwarded to the City for further evaluation. To clarify in person negotiations such as email, faxes, teleconferences, texts, and voice mails these do not constitute an in person negotiation. Even though several forms of communication exist today in all avenues of communication are open to each property owner to respond effectively. As mentioned above, if the property owner does not wish to reach an amicable settlement during the course of negotiations, for whatever reason. The land acquisition agent will forward all of the negotiation information to the City. Subsequently the information is evaluated at a settlement conference prior to filing legal actions to acquire the property. D. Reports of the negotiator's contacts with each property owner are maintained to document negotiations, including: the names and identity of all present owners of record, specific landowner needs, concerns, unanswered inquires, objections, etc.; offer to compensation and response; content and nature of discussion; requests for unanswered inquiries, objections, etc.; offer of compensation and response; content and nature of discussion; requests for assistance; date for future meetings; opinion of prospects for voluntary agreement. E. Project logs are maintained to track status for each parcel; biweekly or monthly project status reports are provided if needed, or on a as needed basis to the acquiring agency unless otherwise specified. The LAND CaMP ANY will establish and maintain a professional working relationship with any and all of the city's designees, and direct our company field personnel to establish and maintain professional conduct in our contacts with landowners and the general public which will promote a positive public image as representatives of City of Salina, and strongly adhere to specified time frames and critical dates. E-4 Exhibit "B" Project Schedule Our firm is available to perform this project in 120 days. Starting April 15TH Project Initiation and Mobilization Week Initiate Landowner Contact Research and Gather Area Comparable Sales Data Correlate Comparable Market Sales Data Forward Appraisal & Valuation Data to City City Reviews Valuation Data and Authorizes Offers Any Corrections or Modifications of Valuations Make Written Offers to Landowners Meeting with Landowners and Review Offers 1 1 Weeks 2 Weeks 2 Weeks 1 Week 1 Week 2 Weeks 2 Weeks 4 Weeks Project Completed on August 15th 120 Days or 16 Weeks E-5 Exhibit "c" Estimate of Costs Fees On a Per Parcel Basis List of Professional Fees for services as outlined in request for proposal. Real Estate Appraisal $425.00 per parcel 27 Parcels X $425.00 = $11,475.00 Land Acquisition and Negotiation Services $425.00 per parcel 27 Parcels X $425.00 = $11,475.00 *1 Eminent Domain Parcel (Estimated) X $7,000.00 = $7,000.00 Total Project Cost = $29,950.00 Additional Eminent Domain driven meetings are billed at the hourly rate below. Real Estate Appraiser Land Acquisition Agent $95.00 / Per Hour $75.00/ Per Hour *Eminent Domain driven meetings, Administrative Settlements, and Settlement Conferences with the Legal Department and Public Works Department are considered additional work. This is after the initial scope of services has been fulfilled. Based on our firms past experience street improvement projects that require additional right of way acquisition are acquired usually with a high degree of success. Anywhere from 5 to 20 percent of those tracts just require this extra work. Our experience tells us that an additional 60 to 80 hours of work should be budgeted for such additional work. This work is subsequent to the original scope and is utilized to exhaust all efforts to acquire the right of way and all necessary easements. This additional work is utilized to insure the projects time line and integrity is protected. This additional hourly work will not be utilized if possible but should be available for special circumstances to secure and protect the City of Salina towards this project. ($6,000 to $7,000) **Review Appraisal Fee does not appear to be applicable to this project. ***With the information that has been supplied to our firm, no easement acquisition or permanent takings appear to exceed the $10,000 dollars threshold as set out in the KDOT guidelines, therefore not requiring a Review Appraisal. No Review appraisal process was included in this bid proposal but is available upon request. E-6 Exhibit D Sec. 13-132. Affirmative action by contractors required. (a) Any contractor entering into a contract with the city and such person's subcontractor shall take affirmative action to insure that employees are treated equally without regard to their race, sex, religion, age, color, national origin, ancestry or disability. Such affirmative action shall include, but not be limited to, the following: Employment, upgrading, demotion or transfer, recruiting or recruitment, advertising, layoff or termination, rates of payor other forms of compensation and selection for training, including apprenticeship. The contractor and subcontractor shall agree to post, in conspicuous places available to employees and applicants for employment, notices to be provided by the director setting forth provisions of this article. The contractor and such person's subcontractors shall provide all affirmative action information and necessary documents to implement the compliance with the requirements of all federal, state and local laws and ordinances. (b) It shall be no excuse that the employer has a collective bargaining agreement with any union providing for exclusive referral or approval systems. The failure of the contractor or subcontractors to comply with the requirements of this article shall be grounds for cancellation, termination, or suspension of the contract, in whole or in part, by the board of commissioners with the contractor or subcontractors until satisfactory proof with intent to comply will be submitted to and accepted by the board of commissioners. (Ord. No. 92-9493, ~ 1, 2-3-92) Sec. 13-133. Affirmative action plans. Every contractor and subcontractor prior to entering into a contract with the city shall submit to the director of human relations an acceptable written affirmative action plan which shall: (1) Identify areas of employment, employment policies, and employment practices which require action by the contractor or subcontractor to assure equal employment opportunity; (2) Analyze these areas, policies and practices to determine what actions by said contractor or subcontractor will be most effective; (3) Establish a plan with goals and timetables designed to achieve equal employment opportunity; and (4) Include provisions for implementation, monitoring, and periodic evaluation in order to insure that it continues to be a valid plan. (Ord. No. 92-9493, ~ 1, 2-3-92) Sec. 13-134. Exemptions. The provisions of this article shall not apply to: (1) Contractors or suppliers who would not be considered as an "employer" as defined in section 13-2; (2) Contracts and subcontracts not exceeding twenty thousand dollars ($20,000.00); and (3) Call type or purchase order agreements which do not exceed twenty thousand dollars ($20,000.00) in total per calendar year; provided, vendors, contractors and suppliers who will supply or expect to supply the city with goods or services exceeding twenty thousand dollars ($20,000.00) during the subsequent calendar year not be exempt from the requirements of this article; provided, the above exemptions shall not conflict with applicable state or federal laws. (Ord. No. 92-9493, ~ 1, 2-3-92)