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HomeMy WebLinkAboutResolution - 2000-R0168 - Contractual Agreement Right Of Way Procurement - Texdot - Section 6, Block J-S - 06_20_2000Resolution No. 2000-RO168 June 20, 2000 Item No. 15 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock an Instrument entitled "Contractual Agreement for Right of Way Procurement" and an Instrument entitled "Supplemental Contractual Agreement for Right of Way Procurement" covering 7,500 square feet of drainage easement area, more or less, of land out of Section 6, Block J-S, between the City of Lubbock and Texas Department of Transportation, and any other related documents. Said Instruments are attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this loth day of June 2000. E A I Rul(AW11 I 0 •, ATTEST: K yt r arnell, City Secretary APPROVED AS TO CONTENT: c� Ed Bucy, Right -of -Way Agent APPROVED AS TO FORM: Linda L. Chamales Supervising Attorney Office Practice "dms:gs/rxDOT-Contractual Agreement.res May 24, 2000 Resolution No. Texas Department of Transportation' June 20, 2000 Farm D-15-37' Item NO. 15 r 1 of 4 Rev. 1 M Contractual Agreement for Right of Way Procurement (City Form) THE STATE OF TEXAS COUNTY OF Travis 1 County Federal Project No. CSJ No. Lubbock 2501-01-01.al-- ROW Account No. g,2,0 a-3 2000—RO168 This Agreement by and between the State of Texas, acting by an through the Texas Department of Transportation, hereinafter called the State, and . Lubbock , Texas, acting by and throu its duly authorized official under Ordinance dated the Z 0 day of -mil N e— 200 Z , hereinafter called the City, shall be effective on the date of approval and execution by and on behalf of the State. WHEREAS, the State has deemed it necessary to make certain highway improvements on Highway No. FM 2528 From: Loop 289 To: US 84 ; and which section of highway, improvements will necessitate the acquisition of certain right of way; and WHEREAS, it is agreed that such right of way purchase shall be a joint effort of the State and the City; NOW, THEREFORE, be it agreed that acquisition of such right of way shall be in accordance with the terms of this agreement and in accordance with applicable Federal and State laws governing the acquisition policies for acquiring real property. The State hereby authorizes and requests the City to proceed with acquisition and the State agrees to reimburse the City for its share of the cost of such right of way providing such acquisition and reimbursement are accomplished according to the provisions outlined herein and agreed to by both parties hereto, Location Surveys and Preparation of Right of Way Data: The State, without cost to the City, will do the necessary preliminary engineering and title investigation in order to supply to the City the data and instruments necessary to obtain acceptable title to the desired right of way. Determination of Right of Way Values: The City agrees to make a determination of property values for each right of way parcel by methods acceptable to the City and submit to the State's District Office a tabulation of the values so determined, signed by the appropriate City representative. Such tabulations shall list the parcel numbers, ownership, acreage and recommended compensation. Compensation shall be shown in the component parts of land taken, itemization of improvements taken, damages (if any) and the amounts by which the total compensation will be reduced if the owner retains improvements. This tabulation shall be accompanied by an explanation to support the determined values, together with a copy of information or reports used in arriving at all determined values. Such work will be performed by the City at its expense without cost participation by the State. The State will review the data submitted and may base its reimbursement on the values which are determined by this review. The State, however, reserves the right to perform at its own expense any additional investigation deemed necessary, including supplemental appraisal work by State employees or by employment of fee appraisers, all as may be necessary for determination of values to constitute the basis for State reimbursement. If at any stage of the project development it is determined by mutual agreement between the State and City that there should be waived the requirement that the City submit to the State property value determinations for any part of the required right of way, the City will make appropriate written notice to the State of such waiver, such notice to be acknowledged in writing by the State. In instances of such Texas Department of Transportation Form D-15-37 2 of 4 Rev. t 2/92 waiver, the State by it due processes and at its own expense will make a determination of values to constitute the basis for State reimbursement. Negotiations: The State will notify the City as soon as possible as to the State's determination of value. Negotiation and settlement with the property owner will be the responsibility of the City without participation by the State; however, the City will notify the State immediately prior to closing the transaction so that a current title investigation may be made to determine if there has been any change in the title. The City will deliver properly executed instruments of conveyance which together with any curative instruments found to be necessary as a result of the State's title investigation will properly vest title in the State for each right of way parcel involved. The costs incidental to negotiation and the costs of recording the right of way instruments will be the responsibility of the City. The cost of title investigation will be the responsibility of the State. Condemnation: Condemnation proceedings will be initiated at a time selected by the City and will be the City's responsibility at its own expense except as hereinafter indicated. The City will obtain from the State without cost current title information and engineering data at the time condemnation are to be initiated. Except as hereinafter set forth the City will concurrently file condemnation proceedings and a notice of lis pendens for each case in the name of the State, and in each case so filed the judgement of the court will decree title to the property condemned to the State. The City may, as set forth herein under "Excess Takings" and where it is determined to be necessary, enter condemnation proceedings in its own name. Property acquired in the City's name for the State must comply with requirements set forth in engineering data and title investigation previously furnished to the City by the State at such time as the City conveys said property to the State. Court Costs, Costs of Special Commissioner's Hearings and Appraisal Expense: Court costs and costs of Special Commissioners' hearings assessed against the State or City in condemnation proceedings conducted on behalf of the State and fees incident thereto will be paid by the City. Such costs and fees, with the exception of recording fees, will be eligible for ninety (90) percent State reimbursement under the established reimbursement procedure provided such costs and fees are eligible for payment by the State under existing law. Where the City uses the State's appraisers employed on a fee basis in Special Commissioners' hearings or subsequent appeals, the cost of the appraiser for updating the report, for preparing new reports, preparing for court testimony and appearing in court to testify in support of the appraisal will be paid direct by the City, but will be eligible for ninety (90) percent State reimbursement under established procedure provided prior approval for such appraiser has been obtained from the State. The fee paid the appraiser by the City shall be in accordance with fee schedule set forth in the appraiser's contract for appraisal services with the State. Excess Takings: In the event the City desires to acquire land in excess of that requested by the State for right of way purposes, the State's cost participation will be limited to the property needed for its purposes. If the City elects to acquire the entire property, including the excess taking, by a single instrument of conveyance or in one eminent domain proceeding, the property involved will be acquired in the name of the City and that portion requested by the State for right of way will be separately conveyed to the State by the City. When acquired by negotiation, the State's participation will be based on the State's approved value of that part of the property requested for right of way purposes, provided that such approved value does not exceed actual payment made by the City. When acquired by condemnation, the State's participation will be in the proportionate part of the final judgement amount computed on the basis of the relationship of the State's approved value to the State's predetermined value for the whole Property Improvements: Property owners will be afforded an opportunity in the negotiations to retain any or all of their improvements in the right of way taking. In anticipation of the owner desiring to retain improvements, the State's approved value will include the amounts by which the upper limit of State Texas Department of Transportation, • Form D-15-37- • 3 of 4 Rev. 12192 participation will be reduced for the retention. It is further agreed that the upper limit for the State's participation in the City's cost for an improved parcel will be reduced as shown in the State's approved value where the owner retains an improvement which is to be moved by either the City or the owner. In the event improvements which are, in whole or part, a part of the right of way taking are not retained by the owner, title is to be secured in the name of the State. The State will participate in the acquisition of a structure severed by the right of way if the part of the house, building or similar structure which lies outside the right of way cannot be reconstructed adequately or there is nothing but salvage left, provided that the State's value is established on this basis and provided that title to the entire structure is taken in the name of the State. The State shall dispose of all improvements acquired. The net revenue derived by the State from the disposition of any improvements sold through the General Services Commission will be credited to the cost of the right of way procured and shared with the City. Relocation of Utilities: If the required right of way encroaches upon an existing utility located on its own right of way and the proposed highway construction requires the adjustment, removal or relocations of the utility facility, the State will establish the necessity for the utility work. State participation in the cost of making the necessary change, less any resulting increase in the value to the utility and less any salvage value obtainable, may be obtained by either the "actual cost" or "lump sum" procedures. Reimbursement under "actual cost" will be made subsequent to the City's certification that the work has been completed and will -be made in an amount equal to ninety (90) percent of the eligible items of cost as paid to the utility owner. The "lump sum" procedure requires that the State establish the eligibility of the utility work and enter into a three -party agreement, with the owners of the utility facilities and the City in an amount equal to ninety (90) percent of the firm commitment as paid to the utility owner. The foregoing is subject to the provision that the individual lump sum approved value shall not exceed $20,000, except as specifically approved by the State. In those cases where a single operation is estimated to exceed $20,000, the transaction will be brought to the attention of the State for determination of proper handling based upon the circumstances involved. Such utility firm commitment will be an appropriate item of right of way. The adjustment, removal or relocation of any utility line on publicly owned right of way by sufferance or permit will not be eligible for State reimbursement. The term "utility" under this agreement shall include publicly, privately and cooperatively owned utilities. Fencing Requirements: The City may either pay the property owner for existing right of way fences based on the value such fences contribute to the part taken and damages for an unfenced, condition resulting from the right of way taking, in which case the estimated value of such right of way fences and such damages will be included in the recommended value and the approved value, or the City may do the fencing on the property owner's remaining property. Where the City performs right of way fencing as a part of the total right of way consideration, neither the value of existing right of way fences nor damages for an unfenced condition will be included in the recommended value or the approved value. State participation in the City's cost of constructing right of way fencing on the property owner's remainder may be based on either the actual cost of the fencing or on a predetermined lump sum amount., The State will be given credit for any salvaged fencing material and will not participate in any overhead costs of the City. The State participation is to be requested on the lump sum basis, the State and the City will reach an agreement prior to the actual accomplishment of the work as to the necessity, eligibility and a firm commitment as to the cost of the entire fencing work to be performed. The foregoing is subject to the provision that the lump sum approved cost shall not exceed $20,000, except as specifically approved by the State. In the event the cost of the fencing is estimated to exceed $20,000, the transaction will be brought to the attention of the State for determination of proper handling based upon the circumstances involved Texas Department of Transportation Form D-15-37 + 4 of 4 Rev. 12/92 Reimbursement: The State will reimburse the City for right of way acquired after the date of this contract in amount not to exceed ninety (90) percent of the cost of the right of way acquired in accordance with terms and provisions of this agreement. The State's reimbursement will be in the amount of ninety (90) percent of the State's predetermined value of each parcel, or the net cost thereof, whichever is the lesser amount. If condemnation is necessary and title is taken as set forth herein under the section entitled "Condemnation," the participation by the State shall be, based on the final judgement, conditioned upon the State having been notified in writing prior to the filing of such suit and upon prompt notice being given as to all purposes, including the right of appeal at any stage of the proceedings. All other items of cost shall be borne by the State and the City as provided in other sections of this agreement. If a lump sum fencing or utility adjustment agreement has been executed, the State will reimburse the City in the amount of ninety (90) percent of the predetermined lump sum cost of the right of way fencing or utility adjustment. If the City prefers not to execute a lump sum agreement for either fencing or utility adjustments, the State will reimburse on the actual cost of such fencing or adjustments. The City's request for reimbursement will be supported by a breakdown of the labor, materials and equipment used. General: It is understood that the terms of this agreement shall apply to new right of way authorized and requested by the State which is needed and not yet dedicated, in use or previously acquired in the name of the State or City for highway, street or road purposes. This agreement shall also apply, with regard to any existing right of way, to outstanding property interests not previously acquired and to eligible utility adjustments not previously made, as authorized and requested by the State. It is further understood that if unusual circumstances develop in the right of way acquisition which are not clearly covered by the terms of this agreement, such unusual circumstances or problems will be resolved by mutual agreement between the State and the City. ATT T: aYHIE DARNELL CITY SECRETAR WM vrud 4WISOF I W THE STATE OF TEXAS Certified as being executed for the purpose and effect of activating and/or carrying out the order, established policies or work programs heretofore approved and authorized by the Texas Transportation Commission under authority 0ly kl7e 0SiPi,l D 0 0 = n By: Date: Resolution No. 2000—RO168 Texas Department pf Tran.�ion Foam D-15-135 1 of 2 Rev. 12192 Supplemental Contractual Agreement for Right of Way Procurement (City Form) THE STATE OF TEXAS County Lubbock Federal Project No. COUNTY OF Travis J CS7 No. 2501-01-OIZL ROW Account No. QD(iS'-r a 3 This supplemental contractual agreement by and between the State of Texas, acting by an through the Texas Department of Transportation, hereinafter called the State, and Lubbock City, Texas, acting by and through its duly authorized official under Ordinance dated the day of Tu N 200� , hereinafter called the City, shall be effective on the date of approval and execution by and on behalf of the State. WHEREAS, the State and the City have previously entered into contractual agreement(s) on the dates of with regard to procurement of right of way on the following indicated highway project limits: From: US 84 To: Loon 289 and which are incorporated herein for any and all purposes; and WHEREAS, the City has now requested that they be relieved of the obligation to acquire the necessary right of way for said highway project and desires for the State to assume the acquisition responsibility; and WHEREAS, it is mutually desired by the City and the State to modify said previous contractual agreement(s) in order to implement the original terms and provisions of such agreement(s); NOW, THEREFORE, in consideration of the foregoing premises and the mutual benefits to be derived therefrom, the above described contractual agreement(s) are hereby modified to the extent of the manner, mode and method of City obligation to acquire the necessary right of way and receive ninety (90) percent reimbursement of the cost thereof in that the State hereby assumes the obligation to acquire the necessary right of way and the City shall accomplish its obligation by contributing ten (10) percent of the cost of the right of way as hereinafter described The State is to acquire all right of way except that the City shall continue with its present obligations to acquire the following described right of way: Parcels: �-& 5-- � 7� `fire — Utilities: 110 Texas Departnx-M of Transportation Form D-15-135 2 of 2 Rev. 12/92 Other: The City shall'contribute to the State and amount equal to ten (10) percent of the cost of the right of way to be acquired by the State and shall transmit to the State with the return of this agreement, duly executed by the City, a warrant or check payable to the Texas Department of Transportation in the amount of Thirty Seven Thousand Five Hundred Dollars ($ 37,500.00 ), which represents ten (10) percent of the estimated cost of the right of way. However, if it is found that this amount is insufficient to pay the City's obligation, then the City, upon request of the State, will forthwith supplement this amount in such amount as is requested by the State. Upon completion of the highway project and in the event the total amount as paid by the City is more than ten (10) percent of the actual cost of the right of way, any excess amount will be returned to the City. Cost of the right of way acquired by the State shall mean the total value of compensation paid to owners for their property interests either through negotiations or eminent domain proceedings. CTT L ock , TEXAS By: 14 LAI ym WINDY SITTON AT T: IWL-,/ Li huJA THIE DARNELL CITY SECR TARY EXECUTION RECOMMENDED: .�/L"DistC•ici�n�neer THE STATE OF TEXAS Certified as being executed for the purpose and effect of activating and/or carrying out the order, established policies or work programs heretofore approved and authorized by the Texas Transportation Commission under auzrrme . By: D71-5-- Ze of Way Date: ,