Smoky Hill River Greenway Trail Amended AgreementAMENDED AND FULLY RESTATED
PUBLIC/PRIVATE PARTNERSHIP AGREEMENT
for the
SMOKY HILL RIVER GREENWAY TRAIL
FROM OHIO STREET TO THE YMCA
This Amended and Fully Restated Public/Private Partnership Agreement (the "Restated
Agreement") is entered into this _]__ day of l=c.brvArl.1 2023 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 City and the Foundation are parties to a Public/Private Partnership Agreement
dated July 15 , 2021 (the "Original Agreement") for construction of the two-phase Greenway Trail
project (the "Project"), which will provide a shared-use linear park trail connecting Bill Burke
Park and Kenwood Cove Aquatic Park.
B. The Original Agreement anticipated construction of an eastern segment of the
Project as Phase 1 and a western segment of the Project as Phase 2. The combination of the
donation of property by the YMCA of Salina, Kansas; the City's ownership of a segment of the
Project known as Lineal Park; and the completion of tree removal from portions of those areas
has prompted a re-evaluation of the dimensions and preferred order of phases of construction of
the Project resulting in a plan to first construct a Western Segment (approximately 2,575 L.F.) as
Phase 1 followed by construction of an Eastern Segment (approximately 1,275 L.F.) as Phase 2,
as depicted on the attached and incorporated Exhibit A.
C. The currently estimated total project costs for both Phase 1 and Phase 2, referred
to as the "Phase 1 -Currently Estimated Total Project Cost" and the "Phase 2 -Currently
Estimated Total Project Cost" are:
Project Cost Previous Cost Phase 1 Phase 2
Design $61,190 $ 0 $ 0
Tree removal (paid by City) $ 37,000
Tree removal $ 48,000
Construction $ 411,000 $360,000
Real Estate/Easements $ 0 $ 10,000
Estimated Total Project Cost $ 448,000 $418,000
Approximate Trail Length 2,575 L.F. 1,275 L.F.
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
$240,000*
$208,000
$448,000
Phase 2
$210,000
$208,000
$418,000
*The City's share for Phase 1 of $240,000 includes $37,000 previously paid for tree removal
and $203,000 toward the contract for construction of Phase 1.
E. The City and the Foundation desire by this Replacement Agreement to amend and
fully restate the Original Agreement by addressing the basis upon which the City and the
Foundation intend to provide for bidding, fmancing, contract award, and construction of both
Phase 1 and Phase 2 of the Project.
THE PAR TIES agree and covenant:
1. Amendment and Restatement. The Original Agreement is amended and fully
restated pursuant to the terms of this Restated Agreement.
PHASE 1 -WESTERN SEGMENT
2. Property acquisition. The City has completed acquisition of the real estate interests
necessary to construct Phase 1 of the Project ("Phase 1 Property Acquisition") through donation
by the YMCA of Salina, Kansas.
3. Design, cost estimate, and bidding. Based upon the current design and cost estimate
for Phase 1 of the Project prepared by the City and HDR, Inc., city engineering staff will advertise
and obtain bids for Phase 1 of the Project in accordance with the City's sealed bid practices.
4. Identification of lowest responsible bidder and Bid-based Estimated Total Project
Cost. 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 1 construction cost based upon the bid of the recommended
lowest responsible bidder plus a contingency of ten percent ("Phase 1 Bid-based
Estimated Cost of Construction"); and
(c) The "Phase 1 -Bid-based Estimated Total Project Cost" consisting of total of:
(i) The Phase 1 cost of tree removal in the amount of $3 7 ,000 previously paid by the
City, plus
(ii) The Phase 1 Bid-based Estimated Cost of Construction.
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5. City's and Foundation's shares of Phase 1. The City represents that it has available
funding on hand and agrees to contribute a total of $240,000 toward the Phase 1 total project cost,
including $3 7 ,000 previously paid for Phase 1 tree removal, subject to the terms of Sections 6 and
8. The Foundation represents that it has $208,000 in available funds on hand and agrees to
contribute its share of the Phase 1 total project cost of not to exceed $208,000, subject to the terms
of Sections 6 and 8.
6. Foundation's share of Phase 1. The Foundation's share of the Phase 1 total project
cost will be a function of whether the Phase 1 -Bid-based Estimated Total Project Cost is (a) equal
to or less than or (b) more than the Phase 1 -Currently Estimated Total Project Cost of $448,000,
as follows:
(a) If the Phase 1 -Bid-based Estimated Total Project Cost is equal to or less
than the Phase I -Currently Estimated Total Project Cost of$448,000, then within 14 days
of the City's email notification to the Foundation of the Phase 1 -Bid-based Estimated
Total Project Cost, the Foundation agrees to deliver to the City funds equal to the Phase 1
-Bid-based Estimated Total Project Cost less the City's $240,000 contribution toward
Phase 1 total project costs as (a) the means of funding the Foundation's share of the Phase
1-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 1 of the Project. The funds delivered by the Foundation to the City
will be held on account and administered by the City's Department of Finance and
Administration.
(b) If the Phase 1 -Bid-based Estimated Total Project Cost is greater than the
Phase 1 -Currently Estimated Total Project Cost for Phase 1 of $448,000, 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.
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 1 -Bid-based Estimated Total Project Cost will be refunded to the
Foundation.
8. Contract management, final 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
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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.
PHASE 2 -EASTERN SEGMENT
9. Property acquisition. The City agrees to continue to diligently pursue completion
of the process to acquire the real estate interests and temporary easements necessary to construct
Phase 2 of the Project ("Phase 2 Property Acquisition") and to document amounts actually paid to
property owners in the course of completion of Phase 2 Property Acquisition ("Phase 2 -Cost of
Property Acquisition").
10. Design, cost estimate, and bidding. Upon fulfillment of the preconditions of (a)
completion of the Phase 2 Property Acquisition and (b) receipt by the City of the Foundation's
written confirmation of the availability of its funds on hand in the amount of $208,000 for use in
payment of its share of the Phase 2 total project cost, and based upon the current design and cost
estimate for Phase 2 of the Project prepared by HDR, Inc., city engineering staffwil1 advertise and
obtain bids for Phase 2 of the Project in accordance with the City's sealed bid practices.
11. Identification of lowest responsible bidder and Bid-based Estimated Total Project
Cost. 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 2 construction cost based upon the bid of the recommended
lowest responsible bidder plus a contingency of ten percent ("Phase 2 -Bid-Based
Estimated Cost of Construction"); and
( c) The "Phase 2 -Bid-based Estimated Total Project Cost" consisting of the total of:
(i) The Phase 2 -Cost of Property Acquisition, plus
(ii) The Phase 2 -Bid-based Estimated Cost of Construction, plus
(iii) The Phase 2 -Bid-based Cost of Tree Removal.
12. City's and Foundation's shares of Phase 1. The City represents that it has available
funding on hand and agrees to contribute a total of $210,000 toward the Phase 2 total project cost,
subject to the terms of Sections 13 and 15. The Foundation represents that after paying its share
of the Phase 1 project costs, it anticipates having $208,000 in available funds on hand and agrees
to contribute its share of the Phase 2 project costs of not to exceed $208,000, subject to the terms
of Sections 13 and 15.
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13. Foundation's share of Phase 1. The Foundation's share of the Phase 2 total project
cost will be a function of whether the Phase 2-Bid-based Estimated Total Project Cost is (a) equal
to or less than or (b) more than the Phase 2-Currently Estimated Total Project Cost of $418 ,000,
as follows:
(a) If the Phase 2 -Bid-based Estimated Total Project Cost is equal to or less
than the Phase 2-Currently Estimated Total Project Cost of$418,000, then within 14 days
of the City's email notification to the Foundation of the Phase 2 -Bid-based Estimated
Total Project Cost, the Foundation agrees to deliver to the City funds equal to the Phase 2
-Bid-based Estimated Total Project Cost less the City's $210,000 contribution toward
Phase 2 total project costs as (a) the means of funding the Foundation's share of the Phase
2 -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 2 of the Project. The funds delivered by the Foundation to the City
will be held on account and administered by the City's Department of Finance and
Administration.
(b) If the Phase 2 -Bid-based Estimated Total Project Cost is greater than the
Phase 2 -Currently Estimated Total Project Cost for Phase 2 of $418,000, 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 2 of the Project and this
Agreement shall terminate and be of no further force and effect.
14. Contract award. Following receipt of the Foundation's share of the Phase 2-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 2-Bid-based Estimated Total Project Cost and (b) the recommended award of the contract
for Phase 2 of the Project to the lowest responsible bidder. If for any reason the contract for
construction of Phase 2 of the Project is not awarded, the funds contributed by the Foundation as
its share of the Phase 2 -Bid-based Estimated Total Project Cost will be refunded to the
Foundation.
15. Contract management, final allocation of cost. City engineering staff will be
responsible for (a) administration of the contract for construction of Phase 2 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 2 of the Project ("Phase 2 -Actual Total Project Cost')
is ultimately less than the Phase 2 -Bid-based Estimated Total Project Cost, the City will refund
to the Foundation an amount equal to the Phase 2 -Bid-based Estimated Total Project Cost less
the Phase 2 -Actual Total Project Cost as soon as reasonably possible following project close-out.
If circumstances develop during Phase 2 of the Project resulting in cost overruns such that the
Phase 2 -Actual Total Project Cost is ultimately greater than the Phase 2 -Bid-based Estimated
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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 2 -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 2 -Bid-based Estimated Total Project Cost.
GENERAL TERMS
16. Time of the essence. Time is of the essence in relation to the obligations of the
parties under this Restated Agreement.
17. Not Assignable. This Restated 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
Restated Agreement shall not be assignable, in whole or in part, by either party.
18. Amendments. Neither this Restated 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.
19. Binding Effect. This Restated Agreement shall be binding upon the parties and their
successors.
20. Merger Clause. These terms are intended by the parties as a complete, conclusive,
and final expression of all the conditions of their Restated Agreement.
The duly authorized officers of each of the parties have executed this Restated Agreement
effective as of the day and year first written above.
CITY OF SALINA, KANSAS AITEST:
By:
FRIENDS OF THE RIVER FOUNDATION ATTEST:
By:
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