07-12-2021 Public Private Partnership Agreement Greenway TrailPUBLIC/PRIVATE PARTNERSHIP AGREEMENT
for the
SMOKY HILL RIVER GREENWAY TRAIL
FROM omo STREET TO THE YMCA
This Public/Private Partnership Agreement ("Agreement") is entered into this 1at.'-day of
July 2021 between the CITY OF SALINA, KANSAS, a Kansas municipal corporation, ("City")
and the FRIENDS OF THE RIVER FOUNDATION, a Kansas not-for-profit corporation,
("Foundation").
Recitals
A. The two-phase Greenway Trail project (the "Project") will provide a shared-use
linear park trail connecting Bill Burke Park and Kenwood Cove Aquatic Park.
B. The currently estimated total project costs for both Phase 1 and Phase 2 of the
Project are:
Project Cost
Design
Construction
Real Estate/Easements
Estimated Total Project Cost
Trail Length
Previous Cost
$61,190
Phase 1
$ 0
$ 448,000
$ 10,000
$ 458,000
2,350 L.F.
Phase 2
$ 48,000
$360,000
$ 0
$408,000
1,500 L.F.
C. The attached and incorporated Exhibit A depicts Phase 1 and Phase 2 of the Project.
D. Based upon the currently estimated total project costs for both Phase 1 and Phase 2
of the Project, the City and the Foundation anticipate the following allocation of funding for both
Phase 1 and Phase 2 of the Project:
Funding Source
City
Foundation/YMCA Donors
Phase 1
$250,000
$208,000
$458,000
Phase 2
$200,000
$208,000
$408,000
E. This Agreement addresses the basis upon which the City and the Foundation intend
to provide for bidding, financing, contract award, and construction of Phase 1 of the Project based
upon the currently estimated total project cost for Phase 1 of the Project in the amount of$458,000
(Phase 1 -Currently Estimated Total Project Cost of $458,000").
THE PARTIES agree and covenant:
1. Property acguisition. The City agrees to diligently pursue completion of the process
to acquire the real estate interests and temporary easements necessary to construct Phase 1 of the
Project ("Phase 1 Property Acquisition") and to document amounts actually paid to property
owners in the course of completion of Phase 1 Property Acquisition ("Phase 1 -Cost of Property
Acquisition").
2. Design, cost estimate, and bidding. Upon completion of the Phase I Property
Acquisition and based upon the current design and cost estimate for Phase I of the Project prepared
by HDR, Inc., city engineering staff will advertise and obtain bids for Phase I of the Project in
accordance with the City's sealed bid practices.
3. Identification of lowest responsible bidder. Subject to the City's right to reject any
and all bids as reserved in its bid documents, within 60 days of the bid opening the city engineer
will determine and advise the Foundation's executive director, by email, of (a) the City's
recommended lowest responsible bidder; (b) the anticipated Phase I construction cost based upon
the bid of the recommended lowest responsible bidder plus a contingency of ten percent ("Phase
I -Bid-Based Estimated Cost of Construction"); and (c) the total of the Phase I -Cost of Property
Acquisition plus the Phase I -Bid-Based Estimated Cost of Construction ("Phase 1 -Bid-based
Estimated Total Project Cost").
4. City's share of Phase I. The City agrees to contribute $250,000 toward the Phase
I -Bid-based Estimated Total Project Cost, subject to the terms of Section 5.
5. Foundation's share of Phase 1. The Foundation's share of the cost of Phase I of the
Project will be a function of whether the Phase I -Bid-based Estimated Total Project Cost is (a)
equal to or less than or (b) more than the Phase I -Currently Estimated Total Project Cost of
$458,000, as follows:
(a) If the Phase I -Bid-based Estimated Total Project Cost is equal to or less
than the Phase I -Currently Estimated Total Project Cost for Phase 1 of $458,000, within
14 days of the City's email notification to the Foundation of the Phase I -Bid-based
Estimated Total Project Cost, the Foundation agrees to deliver to the city engineer funds
equal to the Phase I -Bid-based Estimated Total Project Cost less the City's $250,000
contribution as (a) the means of funding the Foundation's share of the Phase I -Bid-based
Estimated Total Project Cost, (b) evidence of the Foundation's concurrence with the
recommended lowest responsible bidder and (c) the means of assuring the City's
compliance with the Kansas cash basis law in anticipation of entering into the contract for
construction of Phase l of the Project. The funds delivered by the Foundation to the city
engineer will be held on account and administered by the City's Department of Finance
and Administration.
(b) If the Phase I -Bid-based Estimated Total Project Cost is greater than the
Phase I -Currently Estimated Total Project Cost for Phase I of $458,000, the City and the
Foundation shall each have the opportunity, but not the obligation, to negotiate an
allocation of responsibility for the difference within a timeframe that does not jeopardize
the City's ability to award the contract to the lowest responsible bidder. If a negotiated
allocation of responsibility for the difference cannot be achieved within that timeframe, the
City will not award the contract for construction of Phase 1 of the Project and this
Agreement shall terminate and be of no further force and effect.
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6. Foundation's share secured by letter of credit. The .Foundation's obligation to
deliver to the City its share of the Phase 1 -Bid-based Estimated Total Project Cost as described
in Section 5 above is secured by Irrevocable Standby Letter of Credit No. 105665 dated June 2,
2021, issued by First Bank Kansas as "Advising Bank" in favor of the City as "Beneficiary" for
the account of the Foundation as "Applicant" in the amount of $100,000 , a copy of which is
attached and incorporated as Exhibit B (the "Letter of Credit"). The original of the Letter of Credit
shall be delivered to the city clerk for safekeeping as a precondition of the City's execution of this
Agreement.
7 . Contract award. Following receipt of the Foundation's share of the Phase 1 -Bid-
based Estimated Total Project Cost, the city engineer will present for consideration by the City's
governing body (a) the acknowledgement of receipt by the City of the Foundation's share of the
Phase 1-Bid-based Estimated Total Project Cost and (b) the recommended award of the contract
for Phase 1 of the Project to the lowest responsible bidder. If for any reason the contract for
construction of Phase 1 of the Project is not awarded, the funds contributed by the Foundation as
its share of the Phase I -Bid-based Estimated Total Project Cost will be refunded to the
Foundation.
8. Contract management, fmal allocation of cost. City engineering staff will be
responsible for (a) administration of the contract for construction of Phase 1 of the Project, subject
to all City requirements for public improvements to be constructed on the City's property; (b)
inspection of the work performed under the contract; and ( c) administration of payments to the
contractor. If the actual total cost of Phase 1 of the Project ("Phase 1 -Actual Total Project Cost')
is ultimately less than the Phase 1 -Bid-based Estimated Total Project Cost, the City will refund
to the Foundation an amount equal to the Phase 1 -Bid-based Estimated Total Project Cost less
the Phase 1 -Actual Total Project Cost as soon as reasonably possible following project close-out.
If circumstances develop during Phase 1 of the Project resulting in cost overruns such that the
Phase 1 -Actual Total Project Cost is ultimately greater than the Phase 1 -Bid-based Estimated
Total Project Cost, the City and the Foundation agree to negotiate a reasonable allocation of
responsibility for the unanticipated cost in excess of the Phase 1 -Bid-based Estimated Total
Project Cost prior to the City's approval of any change orders resulting in project costs in excess
of the Phase 1 -Bid-based Estimated Total Project Cost.
9. Time of the essence. Time is of the essence in relation to the obligations of the
parties under this Agreement.
10. Not Assignable. This Agreement is unique to the role and circumstances of each of
the parties such that the respective rights and obligations of the parties pursuant to this Agreement
shall not be assignable, in whole or in part, by either party.
11 . Amendments . Neither this Agreement nor any of its terms may be changed or
modified, waived, or terminated except by an instrument in writing signed by an authorized
representative of the party against whom the enforcement of the change, waiver, or termination is
sought.
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12. Binding Effect. This Agreement shall be binding upon the parties and their
successors.
13. Merger Clause. These terms are intended by the parties as a complete, conclusive,
and final expression of all the conditions of their Agreement.
The duly authorized officers of each of the parties have executed this Agreement effective
as of the day and year first written above.
CITY OF SALINA, KANSAS ATTEST: ----~
By: By:
FRIENDS OF THE RIVER FOUNDATION ATTEST:
By: By:
Guy D. Walker, President Brigid Hall, Board Secretary
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