236.7 Negotiation: Difference between revisions

The Missouri Highways and Transportation Commission is empowered by law, Chapter 227.120, RSMo., to purchase, lease or condemn lands in the name of the state of Missouri for purposes deemed necessary for the proper and economical construction and maintenance of state highways. The Commission approves by Certification the detail plans of each project and authorizes the Chief Engineer to acquire all the land, property and rights indicated on said plans by purchase or the Chief Counsel to acquire by condemnation. The Right of Way Director has authority to acquire land, property and rights as indicated on right of way plans through the district right of way offices. District engineers have the authority to approve negotiated and administrative settlements on behalf of the Commission.

236.7.1.2 Project Authorization

Acquisition of right of way cannot commence on any project until the project manager obtains acquisition authority as described in 236.3.4 Right of Way Acquisition Authority and Project Funding.

236.7.1.3 Hardship Acquisition Authorization

Justification for a hardship acquisition must be reviewed and approved by the Right of Way Director on a parcel-by-parcel basis.

236.7.1.4 Protective Buying Authorization

Justification for a protective purchase to prevent imminent development and increased costs of a parcel, must be reviewed and approved by the Right of Way Director on a parcel-by-parcel basis.

236.7.1.5 Who Conducts Negotiations

Staff Negotiations

The term "negotiator" as used here refers to any member of the right of way staff performing negotiations for property or property rights.

By authority of the Missouri Highways and Transportation Commission, negotiations for the acquisition of real property and/or property rights for highway purposes are conducted by qualified right of way personnel. Such personnel must meet the minimum qualifications for the position of right of way specialist as outlined in the Missouri Department of Transportation's Job Specifications Manual. Other right of way personnel not meeting these minimum qualifications can perform negotiations under the direct guidance of the district right of way manager, the chief negotiator, or a qualified senior or certified right of way specialist.

Individuals, who determine values on payment estimates, may establish just compensation as well as negotiate with the owner for acquisition. An appraiser/negotiator, must fulfill the requirements of owner contact as outlined in 236.7.2.

Contract Negotiations

Contract negotiators may conduct negotiations under written agreement as described in 236.7.8. The amount of the fee shall be established on a parcel basis. The Right of Way Division must approve contract negotiators prior to employment. The Right of Way Division maintains a Roster of Approved Contract Negotiators.

236.7.1.6 Acquisition of Real Property Interest

All rights, title, interest of fee hold and subordinate interests in real property within the right of way and/or easement boundaries are to be acquired as necessary, for the proper and economical construction, operation, protection, support, preservation and maintenance of state highways.

Generally, the use of Partial Deeds of Releases or Subordinations, on mortgages and deeds of trust are not necessary when:

The approved compensation is based on the use of a Payment Estimate.
Only a partial taking is involved and the property remaining has adequate value to secure the existing mortgage or deed of trust.
Access rights are not being acquired.
The property is not being condemned.

This list is a general guide and is not intended to be all-inclusive. The district right of way manager should be aware of all situations waiving partial releases and subordinations.

The Right of Way Division, with concurrence from Chief Counsel's Office, approves exceptions to the acquisition of other property rights on an individual case or project basis. Exceptions may be, but are not limited to, the reservation of subsurface mineral rights, gas storage rights or a limitation on vertical dimension for multiple uses.

236.7.1.7 Non-Highway Use and Occupancy of Right of Way

The area within right of way boundaries of state highways is devoted to public highway purposes. Any encroachments, use of airspace for non-highway purposes, joint development or multiple use of right of way and installations of public and private facilities must be in accordance with established regulations and policies governing such uses.

236.7.1.8 Public Information Brochure

A brochure entitled "Pathways for Progress" is available to the general public and for distribution at all public hearings for highway projects. It briefly describes the department's general procedures in the phases of appraisal, negotiation, settlement, closing, mediation and eminent domain.

236.7.1.9 Public Meetings

The district engineer or the project management team presents information concerning MoDOT’s right of way acquisition process at all public meetings. Meetings should be organized to encourage participation, questions and discussion. Right of Way personnel shall attend all public hearings to answer questions and to become familiar with possible problems that may arise during the right of way acquisition process.

236.7.1.10 Project Field Inspection

If field inspections reveal that revision in the design would contribute to the social, economic or environmental effects of a project, the district right of way manager and/or project manager is to be advised.

236.7.1.11 Pre-Negotiation Public Relations Contact

Acquisition personnel may be assigned, commensurate with anticipated problems, to make calls upon property owners and discuss right of way procedures and provide general information concerning the proposed highway project. An employee, who may later be involved with the appraisal, negotiation, or relocation for the project, may make such calls. Care should be taken to avoid discussing assumptions, possible offers, possible damage, or value conclusions. This initial call should be brief and is only intended to provide project information, and promote the public relations.

236.7.1.12 Negotiating Through a Third Party

Negotiations shall not be conducted through a third party unless the property owner has provided written authorization, or the third party is a legally appointed representative for the owner. If an attorney has been retained, and the owner has provided a written authority, all negotiations must be conducted with the attorney unless a written waiver of negotiations is received from the attorney.

236.7.1.13 Initiation of Negotiations

The term "Initiation of Negotiations" relates to the date on which the department presents the owner of the subject parcel, or their designated representative, a written offer for the property or rights to be acquired. When non-resident owners are involved who cannot be contacted in person, initiation of negotiations for the parcel shall be the date such owner or his designated representative received the first communication by mail or telephone from the department in which a monetary offer to purchase is made. (Certified mail with return receipt requested must be used when the above contact is made by mail to establish and document the date that the written offer is received by the relocatee or by their representative.)

236.7.1.14 Relocation Assistance Information

Residential owner occupants being displaced are to be provided an explanation of the relocation benefits for which they are eligible. Offers for right of way acquisition are not to be made to displaced owner occupants until the owner can be provided with the required relocation information.

236.7.1.15 Relocation Section Notices

"Initiation of Negotiations Statement" (RA Form 8-6.5)

This form is to be submitted to the district relocation section immediately after the first initiation of negotiation on a project, and immediately after initiation of negotiations for each individual parcel, affected by the relocation program. This form is not applicable to parcels not affected by the relocation program.

"Acquisition Statement" (RA Form 8-6.8(b))

This form is to be completed by the negotiator and submitted to the relocation section immediately after all interest in the parcel is acquired when the relocation program affects the parcel.

236.7.1.16 Pre-Negotiation Preparation

The accumulation of materials and information necessary to conduct and complete negotiations for the orderly and efficient acquisition of the proposed right of way is the logical first step in negotiation. As a minimum, the negotiator should be supplied with the following information:

Title reports of all recorded interests
Documents necessary to acquire all interests
Right of way plans
Appraisal reports
Basis for Just Compensation
Offer letter

In order to make an informed explanation of the proposed taking to an owner, the negotiator should make a comprehensive study of the plans, title report, documents and appraisal report.

236.7.1.17 Delivery of Payments

Owners and Tenants

At the discretion of the district right of way manager any full-time right of way employee may deliver payment checks for acquisition of right of way interests.

Upon personal delivery of each check the responsible right of way employee is to obtain the signature of the recipient acknowledging receipt of the payment.

Payments mailed to owners shall be by certified mail with return receipt requested. A sample letter (Form 7-1.17A) is available for sending checks to owners/tenants.

Escrow Agents

Payments to escrow agents may be delivered by any person or by certified mail with return receipt requested. Submission of payments to escrow agents shall be by letter (Form 7-1.17B). Owners are to be notified in writing of the date their payment is delivered to escrow agent.

Release of Funds in Escrow

To release funds retained in escrow for removal of improvements, etc., the escrow agent shall be notified by written notice (Form 7-2.17C) with a copy mailed to owner involved. Escrow agents shall furnish proof of disbursement of all funds for parcel files.

236.7.1.18 Recording of Documents

All documents conveying land, easements, realty rights, mortgage releases and restrictive easements to the Commission, regardless of the consideration recited therein, shall be recorded in the appropriate recorder of deeds office.

It is not required to record disclaimers, rights of entry, releases of outdoor advertising rights and signs acquired on beautification projects, releases for LP tanks, or other minor interests. If tenants have a recorded lease, it may be necessary to record any of the above documents that may impact lease provisions.

Special agreements prepared by the Chief Counsel that convey, alter or qualify property rights between the parties will be recorded unless otherwise indicated by the Chief Counsel's office.

236.7.2 Polices and Procedures

236.7.2.1 Purpose

This information establishes policies and procedures related to the acquisition function in negotiations for land, property and rights needed for the proper and economical construction and maintenance of state highways. The intent and purpose is to assure uniform acquisition practices, which will provide consistent and equitable treatment for owners and tenants of real property acquired for highway purposes.

236.7.2.2 General Procedure

All negotiations shall be expeditious and result in the property owner receiving just compensation; the settlement being just and fair to the owner and the public; every courtesy, consideration and patience being extended to the property owner; and create trust in the Missouri Department of Transportation Department and its employees.

All offers shall represent the approved amount of Just Compensation as determined through the department's valuation procedures. The negotiator shall make a reasonable effort to demonstrate and promote confidence in the Approved Just Compensation offer.

If the negotiator discovers facts, which were not recognized in the Just Compensation, the information shall be made available to the district right of way manager. Full consideration to and evaluation of these items will be made prior to continuation of negotiations.

Negotiators must demonstrate that they represent the interests of the property owner as well as those of the public. Care should be exercised at all times to protect the interests of owners who may be unfamiliar or inexperienced in real estate transactions.

Negotiators are required to maintain a written Record of Negotiations, documenting that all elements of the transaction were given adequate consideration and that there was a mutual understanding between the negotiator and the property owner.

236.7.2.3 Prompt Offer of Just Compensation

All offers of Approved Just Compensation shall be promptly presented to property owners or their designated representatives. District management should determine the appropriate timing for delivery of offers within the scope of good negotiating practices.

236.7.2.4 Offer Letter and Supporting Documentation

Use Form 7-2.5A, 7-2.5B(1), or 7-2.5B(2). Delete unused phrases and instructions. Use the date the offer letter is delivered or mailed to the owner, with signature of the district engineer.

A. Delivery of Offer Letter

Offer Letters must be hand delivered or sent by certified mail. A cover letter providing an explanation of the proposed acquisition and the supporting documents described in 236.7.2.4C are to be included if the offer is delivered by mail. If an offer must be made by phone, it must be followed with an offer letter and all required attachments sent by certified mail.

When an owner has authorized a designated representative and so notified MoDOT in writing, or there is a court-appointed representative, the Offer Letter need only by delivered to the representative.

B. Initiations of Negotiations

Delivery of an Offer Letter establishes the Initiation of Negotiation date for a parcel. Initiation of negotiations is established by the delivery of an offer letter to one owner of a multiple ownership, but all owners are to be furnished all relevant offer items described in 236.7.2.4C.

C. Supporting Documents

Upon initiation of negotiations for the acquisition of right of way from a property for highway purposes, each owner or representative will be provided with the following:

Offer letter
Basis for Just Compensation or Payment Estimate
Right of Way Brochure – Pathways for Progress
Conveyance documents
Blank Escrow Agreement, if applicable
Pro Rata Real Estate Tax Claim form
Plan sheet, portion of plan sheet or plat illustrating the acquisition and the remainder
When applicable and appropriate, provide Request for Taxpayer Identification Number and Certification and Request for Allocation of Gross Proceeds, (Form 7-7.3,or IRS Form W-9).

D. Donation

An offer letter is not required when requesting donated right of way.

236.7.2.5 Offer Letter Formats

A. Fee Owners

Applicable portions of Right of Way Offer Letter--Fee Owner (Form 7-2.5A), along with a Basis for Just Compensation or Payment Estimate, are to be delivered to the fee owner or a designated representative.

B. Tenant Owners

1. Offer Letter - Fee Interest Acquired or Disclaimed

Right of Way Offer Letter-Tenant Owner (Form 7-2.5B(1)) is to be used for offers to owners of tenant-owned improvements when the owners of the land have conveyed their interest, or when the landowners have disclaimed all interest in the tenant-owned improvements.

2. Offer Letter - Fee Interest Not Acquired or Disclaimed

When the land owners have not conveyed or disclaimed their interests in the tenant-owned improvements, the offer to tenant-owners will be made by use of a letter designated as Right of Way Offer Letter--Tenant-Owner—Disclaimer, (Form 7-2.5B(2)) with a Disclaimer (Form 7-2.5C) attached.

The tenant offer will be conditioned upon the tenant obtaining execution of the necessary disclaimers. Completion of the transaction including Release of Structures and Leasehold, (Form 7-2.7D (CCO RW 15)) and payment shall not be made unless the landowners convey their interest by deed or provide a disclaimer.

C. Disclaimer by Owner in Tenant Owned Improvements

When a separate amount of Just Compensation is approved for an improvement owned by a party other than the owner of the land, payment for such improvement shall not be made unless the owner of the land disclaims all interest in the tenant-owned improvement. The fee owner may disclaim interest in such improvement by execution of either a deed of conveyance of right, title and interest or a Disclaimer (Form 7-2.5(C)).

When the fee owner does not execute a deed or a disclaimer, the offer of just compensation for the improvement and the disclaimer will be presented to the tenant owner with the condition that settlement will be made provided that the tenant is successful in obtaining execution of the necessary disclaimers.

D. Combined Fee-Owner and Tenant-Owner Offer Letter for Condemnation Purposes

Immediately prior to condemnation proceedings for a parcel where tenant-owned structures are involved, a letter designated Offer Letter--Fee and Tenant Owners, (Form 7-2.5D), is to be presented to all fee owners of record or their designated representative with a copy of the letter to all tenant owners.

This offer will be the total of the amounts of just compensation approved for fee and tenant owners. The brochure, deed and Basis for Just Compensation are not required with this letter.

E. Revised Offers

When the approved just compensation has been presented to the owner and it is revised through the appraisal process, it is necessary to provide such owners with an offer letter reflecting the revised figure and reason for the revision.

1. Fee Owners

The first paragraph of Offer Letter--Fee Owner (Form 7-2.5A) will be omitted and replaced with the following paragraph for revised offers.

"In a previous letter you were offered the sum of $____________ for certain real property and rights needed for improvement of the above highway project. It is necessary to revise that offer previously made to you because ____________."

Use the remaining paragraphs from the original letter, and the following, if appropriate. “Also attached is a revised Basis for Just Compensation”.

2. Tenant Owners

The first paragraph of Offer Letter--Tenant Owner, (Form 7-2.5B(1) and 7-2.5B(2), will be omitted and replaced with the following paragraph for revised offers.

"In a previous letter you were offered the sum of $____________ for certain structures located on property needed for improvement of the above highway project. It is necessary to revise that offer previously made to you because _____________________."

Use the remaining paragraphs from the original letter, and the following, if appropriate.

236.7.2.6 Basis for Just Compensation

The Basis for Just Compensation explains how the estimate of Just Compensation was determined, and is to be given to property owners. The Basis for Just Compensation appears in 236.6 Appraisal & Appraisal Review (see Forms 6-4.3, and 6-4.4) and shall be included with the initial Offer Letter--Fee Owner, and with any revised offer letter to fee owners that may be necessary.

236.7.2.7 Improvements Acquired or Damaged

A. Interest in Improvements Acquired

An equal interest shall be acquired in all buildings, structures or other improvements determined to be a part of the real property when such improvements are to be removed from the land acquired for right of way purposes.

B. Improvements Located Partially Within the Right of Way

Improvements located partially within the right of way that are designated for removal as indicated by temporary easements shall be totally removed, unless the owner retains the improvement and cuts it at the right of way line.

The decision to allow an owner to retain and cut an improvement at the right of way line, must be made during negotiations. In making this decision the owner is to understand that the Department will have to reevaluate its offer through the appraisal process. If a revised offer is unacceptable to the owner, the original offer and plan for total removal of the improvement will apply and if necessary condemned as originally designed.

C. Fee-Owned Improvements

Owners will be compensated for any loss in fair market value of improvements that are not required to be removed but are adversely affected as a result of the acquisition, as determined by appraisal.

D. Tenant-Owned Improvements

Tenant-owned improvements will be acquired by Release of Structures and Leasehold, (Form 7-2.7D (CCO RW15)).

1. Improvements Acquired or Damaged - Release of Structures and Leasehold

Tenants who have the right or obligation to remove real property improvements that contribute to the real estate value, as determined in the appraisal process, have a compensable interest in those improvements. Compensation may include one or more of the following:

The contributory fair market value for the improvement being acquired, or the value for removal purposes which ever is greater
Damages the improvement suffers as a result of the acquisition
The value of any leasehold interest

2. No Payment to Tenant Before Fee Interest Acquired or Disclaimed

No payment shall be made to a tenant for an improvement unless the landowner involved conveys or disclaims all interest in the improvement.

3. Condemnation of Tenant-owned Improvements

Eminent Domain Law provides the same rights and protections to tenants and fee owners. Any tenant has the right to reject payment for improvements as outlined above and obtain payment for such property interests through eminent domain proceedings applicable to Missouri law. In these situations it will be necessary to condemn all interest in the property including the fee owner.

E. Acquisition of Outdoor Advertising Billboards and On-Premise Advertising Signs

Outdoor advertising structures are defined as all signs, billboards, drawings or paintings which advertise activities conducted elsewhere or services and/or products provided other than at the subject property. They should not be confused with on-premise signs, which advertise activities conducted on the premises or services and/or products provided on the property.

It has been determined that owners of outdoor advertising signs have the right or obligation to remove such structures at the termination of the lease or agreement. Therefore, such structures are generally acquired like other tenant-owned improvements, as addressed above, with the following exceptions.

1. Outdoor Advertising Structures Considered Real Estate

All outdoor advertising structures shall be valued and acquired as real estate, and never considered as personal property to be moved under the Relocation Assistance Program.

2. Salvage of Outdoor Advertising Billboards

Since September 1999, it has been MoDOT policy not to salvage billboards back to the owner. However, in order to facilitate negotiations, district right of way may agree to leave a sign in place for a specified period of time by use of an Extension of Possession Agreement (Form 5-6.4 (CCO RW12)) for the structure and the sign site. The agreement must state a maximum time period for the sign to be left in place and a physical possession date must also be agreed to by the parties. For more specific information on removal procedures, see 236.5.26 Acquired Improvements.

F. Acquisition of On-premise Signs

Since February 1999, it has been MoDOT policy to treat all on-premise signs, including trademark and logo signs, as personal property under the Relocation Assistance Program. The only exception would involve a situation in which the subject business facility is being acquired or there is insufficient remaining land on which to relocate the sign. Only these circumstances would necessitate that a sign be valued and acquired as real estate.

G. Advertising Sign Encroachments

Advertising signs located partially within the right of way which are designated for removal as indicated by temporary easements shall be totally removed, unless the owner retains the improvement and modifies it to avoid the right of way line. Right of Way Division approval is required for a license to allow the encroachment.

Some on-premise signs, (enter and exit signs for example) and more rarely, an Outdoor Advertising (off-premise) structure may be allowed to encroach on the right of way. An encroachment can only be allowed with Right of Way Division approval, and only if it does not interfere with construction of the road improvement, or create hazard. The license is to state that if the sign is ever removed, modified over 50%, or re-built, the agreement is canceled and the sign or its replacement will not be permitted to encroach on the right of way. The agreement is to be recorded so potential buyers are put on notice that the agreement is non-transferable to another sign or a replacement structure. The rights of the license attach to the land and the structure, and are transferable to subsequent sign owners but are not transferable to another sign or a replacement structure.

The decision to allow a sign encroachment must be made during negotiations. In making this decision the owner is to understand that MoDOT will have to reevaluate its offer through the appraisal process. If a revised offer is unacceptable to the owner, the original offer and plan for removal of the improvement will apply and if necessary it will be condemned as originally designed. If a sign owner desires to enter into a license to allow an encroachment and is agreeable to a revised offer, the district right of way is to contact the Right of Way Division for approval before proceeding. Each encroachment license will be judged on its own merits, and is revocable.

The following steps are required for licenses involving FHWA approval, and should be submitted with each request for consideration of a sign encroachment license.

1. District submits a request to the Right of Way Division to allow the encroachment, stating reasons for the request. The request should include a drawing showing the relationship of the structure to the right of way with dimensions. (Design normally provides the drawing.) Also include one or more photos illustrating the situation.

2. When applicable, the Right of Way Division makes written request for FHWA concurrence, and attaches the district’s request.

3. FHWA will respond by letter.

4. If a favorable response is received the district will be directed to prepare a license, for signature by the sign owner.

5. License is recorded.

236.7.2.8 Valuation by a Negotiator – Separation of Functions

For acquisitions where Just Compensation was determined by a Value Finding or Standard appraisal format, the valuation and approval of Just Compensation must be prepared by an individual other than the individual that will present the offer letter and negotiate for the acquisition. On a simple valuation/acquisition situation, in which the approved fee study authorizes the valuation by Payment Estimate, the same individual may estimate the Just Compensation and negotiate the acquisition. If the same individual performs both functions, the appraiser/negotiator must do the following:

contact the owner
deliver or mail the brochure Pathways for Progress
advise the owner that the property will be inspected (invitation to accompany inspection is not required on Payment Estimate)
prepare a Payment Estimate, (Form 6-3.3)
secure co-signature of the Payment Estimate
prepare an offer letter based on the Payment Estimate
deliver the offer letter to the owner, with all the supporting documents set out earlier in this section.

236.7.2.9 Negotiation Contacts

A. Personal Contact

Every reasonable effort shall be made to personally contact owners of real property or a designated representative who resides within the state. The negotiator shall explain the proposed acquisition and provide the owner or representative with those documents identified earlier in this section.

B. In-State Owner Resides in Another MoDOT District

If a property owner resides within the state, but outside the district where the property is located, and it is not practical for a local negotiator to make a personal contact, the owner may be contacted in person by a negotiator from another district. Requests to other districts for such assistance shall include all necessary documents and information essential to the negotiation assignment.

When all reasonable efforts to make a personal contact have failed, the owner may be contacted by certified mail, return receipt requested. The file should contain an explanation of the circumstances that prevented personal contact.

C. Out-of-State Owner

An out-of-state owner may be personally contacted, if practical, or contacted by telephone and certified mail, return receipt requested. When an owner is contacted by mail, provide the required written information identified earlier in this section, and an explanation of the proposed acquisition.

236.7.2.10 Negotiation Procedures

The following is a general guide as to the number and content of negotiation contacts. Normally three contacts are needed to assure the owner’s understanding and confidence.

During the first contact the negotiator is to:

Provide brochure – "Pathways for Progress"
Review title information
Explain the right of way plans and provide plan sheet, portion of plan sheet, or plat illustrating the acquisition and the remainder
Explain the acquisition procedures and provide blank Escrow Agreement, (Form 7-4.2 (CCO RW 8)) if applicable
Explain Proration of Taxes and provide Pro Rata Real Estate Tax Claim, (Form 7-2.22C)
Provide the written Offer Letter
Provide Basis for Just Compensation
Provide conveyance documents
Provide or agree to obtain answers to the owner’s questions
When applicable and appropriate, explain the IRS requirements on 1099S and provide Request for Taxpayer Identification Number and Certification and Request for Allocation of Gross Proceeds, (Form 7-7.3),or IRS Form W-9.

During the second contact the negotiator should review the items discussed during the first contact. The negotiator should give special attention to making sure the property owner understands the plans and the effect on the remaining property. Any additional questions the owner has should be answered.

During the third contact the negotiator should attempt to get the owner to accept or reject the offer. If the owner fails to accept or reject the offer, or does reject the offer, the mediation and condemnation process are to be explained. The owner is to be advised that negotiations can continue until such time as the condemnation commissioners' report is filed.

When applicable and appropriate, obtain a taxpayer identification number (TIN) using an IRS Form W-9 or Form 7-7.3 as shown in 236.7.7. If a husband and wife own the property, either one can provide their TIN. Partnerships and trusts should have their own TIN that should be used for reporting real estate transactions. If there is more than one owner, other than a husband and wife, partnership or trust, each owner that is expected to receive an allocation of the proceeds shall be given a form on which to provide their TIN.

On some projects it may be necessary to advise the property owner that condemnation proceedings are being filed immediately. In this situation the owner will be advised of the reason for the early filing of the condemnation petition and informed that negotiations will continue until the commissioners' report is filed.

During negotiations, the negotiator’s objective is to promote understanding of the design and reasonableness of the offer. If the owner disagrees with the offer, the negotiator should attempt to determine the reasoning of the owner’s opinion of value or their objections to design considerations. The owner’s opinion of value, reasoning, counteroffers and objections are to be documented in the negotiator’s report and discussed with the chief negotiator or district right of way manager. If the negotiator is unable to acquire the property for the approved offer, and administrative settlement may be considered as described in 236.7.3.

If at any stage of negotiations it is determined that a design change is appropriate and can facilitate successful negotiations, the district right of way manager and district design will be consulted on the proposed change, and a decision made. The property owner is to be advised accordingly.

A. Time to Consider Offer

The property owner shall be allowed a reasonable period of time to consider the offer of just compensation and the opportunity to obtain professional advice or assistance if so desired.

236.7.2.11 Uneconomic Remnants and Future Excess Right of Way

A. Definition of Uneconomic Remnant

"A parcel of real property in which the owner is left with an interest after the partial acquisition of the owner's property, and in which the acquiring agency has determined has little or no value or utility to the owner." (49 CFR 24.2 (w), 10/1/93)

B. Offer to Purchase Uneconomic Remnants

An offer to purchase each uneconomic remnant shall be made to the owner simultaneously with the offer of just compensation for the acquisition of the right of way, if the value was established in the appraisal review process. Situations revealed during negotiations or administrative decisions to consider all or part of remainders as uneconomic remnants, may necessitate a revised offer reflecting the value of the uneconomic remnant.

Multiple uneconomic remnants shall be individually identified and individual values set out in the offer letter.

The Commission will not condemn for the acquisition of an uneconomic remnant.

C. Outright Sale of Uneconomic Remnants

The district is authorized to sell any uneconomic remnant not exchanged during negotiations as described in 236.5.12 Excess Land Conveyances & Relinquishments – Regulated Utilities.

D. Definition of Future Excess Right of Way

Any area of existing right of way that is to be conveyed to adjacent property owners as established in the change in route status documents for the project.

E. Exchange of Remnants or Future Excess Right of Way for New Right of Way

The district is authorized to exchange uneconomic remnants, or future excess right of way for real property or rights required for highway purposes when the exchange is for equal value based on the purchase price of the remnant or appraised value of the future excess, and the remnant or excess adjoins the owner's remaining property. Such an exchange is to be handled like an Administrative Settlement, under the approval of the district right of way manager.

When remnants or future excess right of way are exchanged for new right of way, the amount of just compensation to the owner shall be reduced by the value of the remnant or excess and the warranty deed from the owner shall recite the reduced monetary amount "and exchange for other land".

Since the future excess right of way will still be needed until the project is complete, the following paragraph will be included in all quit claim deeds conveying the future excess to the abutting property owner:

"The Missouri Highways and Transportation Commission retains full, free, and uninterrupted use and possession of the land herein conveyed until completion of construction and acceptance of the project for the construction of relocated _____________________ by the Commission’s District Engineer."

When this paragraph is included in the quit claim deed a cloud is placed on the title. To remove this cloud, the district, upon request of the owner, can provide an affidavit as to completion and acceptance of the project.

Remnants or excess right of way exchanged for new right of way will be conveyed by quitclaim deed for the consideration of "One Dollar and Exchange for Other Land." Should the owner refuse to accept a quitclaim deed, contact the Right of Way Division for authorization to use a warranty deed where the Commission owns fee title to the property being exchanged.

Parcels for disposal, which are on the National Highway System also require the billboard exclusion clause in the conveyance document.

All conveyances of remnants or future excess right-of-way by the Commission shall provide for utilities as described in 236.5.12 Excess Land Conveyances & Relinquishments – Regulated Utilities.

236.7.2.12 Donation of Real Property

In some instances property owners affected by small, uncomplicated acquisitions of right of way and/or easements may be willing to donate the property that is needed for the project, especially when the project improvements provide a benefit to the property and community.

The Missouri Highways and Transportation Commission will accept a donation of property required for highway purposes. An appraisal and offer letter is not required when property is being donated, however, some documentation is necessary.

A. Coercion to Donate

It would be inappropriate for an acquiring agency during negotiations to inform the property owner that the needed right of way would have to be donated in order for the roadway project to be completed. The only acceptable circumstance would involve a project that would be terminated unless all owners agreed to donate.

B. Donation/Waiver of Appraisal Letter

Prior to acceptance of such donation, the negotiator must inform the owner of the right to receive just compensation for the property. The negotiator must obtain a signed Donation/Waiver Letter, (Form 7-2.12), which acknowledges the owner’s right to receive just compensation as determined by an appraisal. Should the owner refuse to sign the statement yet still wants to donate the property, the Negotiator's Report shall be fully documented as to the owner being advised of their rights and any reason for refusing to sign the letter.

C. Donation of Temporary Easement Without Waiver Letter

When temporary easements cause no compensable damage to the adjacent property, a donation can be obtained without advising the owner of the right to just compensation. In such situations the plans should be explained to the owner and a request made for the donation. In this case, the executed easement document is all that is necessary. A Donation/Waiver Letter is not required.

D. Waiver of Releases on Donated Right of Way

When non-complex property or property rights are donated, the district right of way manager may waive acquisition of additional property interests (like partial mortgage releases, easement owners, tenant interests, etc.), but a memo outlining the waiver to acquire additional property interests should be included in the file.

E. Donations by Government Agencies

Donations by government agencies do not require the use of a Donation/Waiver Letter. For acquisition from government agencies, see 236.7.5.

236.7.2.13 Negotiator’s Report and Contact Log

A Negotiator’s Report, (Form 7-2.13), shall be completed with attachments and signed by the negotiator upon termination of or completion of negotiations for each parcel. A log of all contacts with the owner or representative shall be completed and attached to the Negotiator’s Report. The information for each contact should include the date and place of each contact, parties contacted, offers made, counteroffers, issues raised by the owner, reasons settlement could not be reached, and any other pertinent data. Each contact entry shall include the name or initials of the person who prepared the entry.

When negotiations are unsuccessful, and the negotiator considers further attempts to negotiate to be futile, recommendations for action should be recorded.

236.7.2.14 Payment Prior to Possession

No owner will be required to surrender possession of real property acquired for highway purposes prior to payment of the agreed purchase price or payment of the Commissioners' Award into court for property acquired by condemnation proceedings.

236.7.2.15 Title Update Prior to Payment

Prior to payment to an owner for right of way, the public records must be searched to determine that no transactions have occurred on the property being acquired subsequent to the latest title search. This must be done on each parcel except when a title insurance company or abstractor is employed by written agreement to act as escrow agent to make distribution of funds. When a bank or other parties act as escrow agents, the title update shall be made prior to delivery of checks to such escrow agents.

236.7.2.16 Possession Policies and Vacancy Notices

Owner and tenant occupants of buildings acquired for highway purposes shall not be required to move from a dwelling or to move a business, nonprofit organization or farm operation without at least 90 days' written notice of the date by which such move is required.

Possession policies and procedures for sending notices to vacate are contained in 236.8.15 Relocation Assistance Program – Possession Policies and Vacancy Notices.

236.7.2.17 Extension of Possession and Fair Rental Value

When the proposed letting schedule permits, an owner or tenant may be authorized an extension of possession based on a monthly rental rate, as described in 236.5.26 Acquired Improvements. An Extension of Possession Agreement, (Form 5-6.4 (CCO RW 12)), shall be used when the original occupant is allowed to extend possession up to one year. If it is necessary to extend possession beyond the one year time period, the Extension of Possession Agreement shall be canceled and replaced with a Lease of Premises Agreement, (Form 5-5.5 (CCO RW 14)). An extension of possession that is expected to last beyond one year is to be written on a Lease of Premises Agreement rather than an Extension of Possession Agreement.

When an owner or tenant is granted an extension of possession, a monthly rental rate shall be established and collected in advance for each monthly period of extension. The rental value for owner-occupied and tenant-occupied property will be determined by the method established in 236.5.26 Acquired Improvements.

236.7.2.18 Coercion

The Uniform Act forbids an acquiring agency from taking any coercive action in order to compel an owner to agree on a price for his property. All negotiations shall be conducted in such a manner as to avoid coercing an owner to reach agreement. Condemnation shall not be used as a threat. The property owner shall be given a reasonable amount of time to consider the offer and to obtain professional advice or assistance if they so desire. The agency shall not advance the time of condemnation, or defer negotiations or condemnation or the deposit of funds with the court, in order to induce an agreement on the compensation to be paid for the property.

236.7.2.19 Non-Discrimination

The right of way acquisition function shall be conducted in such a way and manner as to assure that no person shall on the ground of race, color, religion, creed, national origin, sex, age, ancestry, or physical ability be denied the benefits to which the person is entitled or be otherwise subjected to discrimination.

236.7.2.20 Acquisition by Mediation

Mediation is an option offered by MoDOT that can be described as a process in which a neutral and impartial third party assists parties in disagreement to negotiate an acceptable settlement. Complete policies and procedures regarding mediation are described in 236.11 Mediation.

Mediation is not intended to replace or reduce the importance of the negotiation process for the acquisition of right of way nor does it preclude the use of administrative settlements.

Should the mediation process not be successful with the parties failing to reach agreement, the needed right of way will then be acquired by the normal condemnation process.

Mediation is at MoDOT’s option. It will be offered to all property owners, or their representative, when a negotiated settlement cannot be reached, with the following exceptions:

When the time constraints to meet a construction letting schedule will not allow for the mediation process should it not be successful and condemnation become necessary.
When it is determined that the subject property poses a unique legal concern which the Chief Counsel’s office believes should be litigated.
When the issue preventing agreement between MoDOT and property owner involves a requested plan change that MoDOT representatives, having the authority to revise project plans, agree cannot be made.

An appropriate time to consider mediation is when the MoDOT representative negotiating for the needed right of way determines that negotiations are at an impasse and it is fairly evident an agreement will not be reached.

236.7.2.21 Acquisition by Condemnation

A. When Condemnation Procedure Initiated

Complete policies and procedures regarding eminent domain procedures are described in 236.10 Condemnation Procedures. An appropriate time to consider condemnation is when the MoDOT representative negotiating for the needed right of way determines that negotiations are at an impasse and it is fairly evident an agreement will not be reached. Mediation must either be carried out or not used because of the three reasons outlined in 236.7.2.20 Acquisition by Mediation.

B. Transfer of Responsibility From Right of Way to District Counsel

When it is determined that a property cannot be acquired through negotiation or mediation, the responsibility of acquisition is transferred to the district counsel. Negotiation to acquire the property can continue by either the negotiator or attorney assigned to the tract, until the commissioner’s determination has been made.

C. Information Packet Required by District Counsel

The information needed by the district counsel’s office includes but is not limited to the following:

Negotiator’s Report, (Form 7-2.13) and typed Negotiator’s Log detailing counter offers and settlement offers, requests for design changes, etc.
Latest title report
Two copies of appraisal with Approval of Just Compensation, (Form 6.4.3)
List of parties to be named as defendants and served notice
Copy of pertinent documents (i.e. easements impacting the acquisition area, trust agreements, etc).
Copy of pertinent correspondence
Copies of property descriptions to be used in the Condemnation Petition.
Copies of the Form 238.2.17 Professional Land Surveyor Description Review Form for each property description submitted.

D. Owner’s Expenses in Condemnation Are Not Reimbursable

When MoDOT institutes and concludes a condemnation action to acquire real property, the owner of the property is not entitled to reimbursement for their expenses, including attorney, appraisal and engineering fees actually incurred because of the condemnation proceedings.

236.7.2.22 Reimbursement of Owner’s Expenses

A. Reimbursement of Property Transfer Expense

The owner of property acquired for highway purposes will be reimbursed for recording fees, transfer taxes and similar expenses incidental to conveying the property. These expenses are normally paid directly by the department.

B. Reimbursement of Mortgage Prepayment Penalty

Owners will be reimbursed for actual penalty costs for prepayment of a preexisting mortgage entered into in good faith and filed of record prior to the initiation of negotiations. These costs will be reimbursed when the property is taken in its entirety or the taking is of such magnitude that the remainder will not provide collateral for the mortgage and/or the mortgagee legally requires penalty costs for prepayment of the mortgage. The owner is responsible for submission of paid receipts of penalty costs and request for reimbursement to the district office.

C. Reimbursement of Real Estate Tax

Information pertaining to the reimbursement of taxes is contained in the offer letter and the right of way brochure Pathways for Progress. During negotiations, the owner will be provided with the Pro Rata Real Estate Tax Claim (Form 7-2.22C). The district right of way manager or a designated representative may execute the claim approving payment.

Owners will be reimbursed for a pro rata portion of the state, county and city real estate taxes paid for the current taxable year on property purchased by the department. The pro rata portion of taxes will cover the full number of months remaining in the calendar year after payment is received by the owner or escrow agent for the property. Claims for reimbursement must be made within six months after the city or county tax delinquent date. Delinquent tax payments are not reimbursable. The owner is responsible for submission of paid tax receipts and Form 7-2.22C to the district office for reimbursement.

1. Pro-ration of Real Estate Taxes

The following procedures will be followed for computing the pro-ration of real estate taxes, for all contiguous holdings under the same ownership normally considered in a before and after appraisal. The Pro-Ration Of Realty Taxes (Form 7-2.22C) is self-explanatory.

a. Total Acquisition of Property

Divide the annual taxes by 12 and multiply by the number of full months remaining in the taxable year after payment is delivered to the owner or escrow agent or the condemnation award is paid into court.

b. Partial Acquisition of Property:

Divide the approved compensation, payable to fee holder for land, improvements, property rights and/or damage to remainder, by the value of the entirety as indicated on line E, (1) of right of way Form 6.4.3, then multiply computed percentage times the amount on the tax bill. Divide the resulting figure by 12 and multiply by the number of full months remaining in the taxable year after payment for right of way delivered.

c. Impact of Payment Estimate on Proration of Taxes

If the compensation for right of way is established by the use of a Payment Estimate, the property value established by the County Assessor can be used in the calculation.

d. Impact of Administrative Settlements and Condemnation on Proration of Taxes

The amount of an administrative settlement or condemnation award is not a factor in computing tax reimbursement. Computations will be done in the exact same manner as when right of way is acquired at the approved offer.

e. Impact of Exchange of Land on Proration of Taxes

When land owned by the state is traded for land required for right of way, the owner is eligible for reimbursement of taxes. In most instances when a trade occurs there will be an appraisal of both the land to be traded and the land required for right of way; therefore, when tax reimbursement is determined, the trade will be given the same consideration as though a cash transaction had transpired.

f. Impact of Donation on Proration of Taxes

When land is donated for right of way purposes, the owner is eligible for reimbursement of taxes. Value of the land donated and value of entirety can be determined by utilizing data from the County Assessor's office.

g. Impact of Damage-Only Offers on Proration of Taxes

Should the taking consist solely of damages caused by the imposition of temporary easements and no permanent reduction in value is evident in the after situation, proration of taxes will not be needed. In this case, the assessed value for tax purposes would not be affected by the taking.

D. Appeal for Expense Eligibility

Property owners may file a written appeal with the agency if they believe that the agency has failed to properly consider their application for reimbursement of expenses incidental to the transfer of title. The time limit for filing an appeal is 60 days after they receive written notification of the agency’s determination on their claim. The appeal procedure follows that of the 236.8 Relocation Program.

236.7.2.23 Cost of Moving Utilities

Current Commission policy provides that the cost of relocation and re-connection of privately owned service lines of a public utility is to be included with the other necessary utility work of the project, at MoDOT’s expense. Such costs should not have been considered in the appraisal process.

Most utility companies reconnect the private service lines at no cost to the property owner, but some do not. The cost to move and reconnect service lines that lie on or in existing right of way is a noncompensable item. Property owners are advised of the possibility of incurring expense to reconnect these lines in the project public hearing and in the offer letter. The cost to the owner to reconnect these services cannot be included in the appraised compensation.

Providing for the adjustment of utilities for a project is the responsibility of the district design. There are situations, however, in which right of way personnel will have involvement. There are utility companies that, under their existing regulations, have responsibility for ownership and maintenance of service lines connecting to the mains. The following 10 companies have been identified as owning the main only: St. Louis County Water Company, United Water Company of Missouri (formerly Capital City Water), City of Rolla (Water), City of Independence (Water), Williams Pipeline Company (Gas), City of Macon (Water), City of Unionville (Sewer), Panhandle Eastern Pipeline Co. (Gas), Union Electric (Underground Electric) and U.S. Water of Lexington. There may be additions to those identified and a check should be made on each project to determine who has responsibility for service lines.

It is the Commissions' policy that owners of utility lines on existing right of way are responsible for costs of adjustments. Therefore, the property owner may have responsibility for adjustment costs in cases where the utility company only owns the main. The department will pay for the cost of the adjustment between the old and new right of way lines.

It is also the Commissions' policy and part of the negotiating responsibility to advise such owners that they are responsible for adjustment costs for their service lines on existing right of way and that the department will provide compensation for any part of the adjustment on new right of way being acquired.

If right of way is secured from a property owner who owns a service line that requires adjustment, the cost of the adjustment and any compensation due the property owner will be made during the construction of the project. The method of adjustment is to be handled as follows:

Service line adjustments are included in our roadway contracts. Bid items are provided for the different types of anticipated adjustments. If the property owner elects to have the Commissions' contractor do the work, the portion of cost of adjustment on new right of way is provided by the Commission and no further obligation to the owner is necessary. Construction personnel will compute the cost for the adjustment that was on existing right of way and the property owner will be billed for that part only. If the service line adjustment is done by the property owner's plumber and right of way is secured for the project, the property owner will be compensated for the actual cost of adjustment on the new right of way. The property owner will not be compensated for more than the cost determined by the amount based on the roadway contractor's bid items.

236.7.2.24 Condemnation of Temporary Driveway Connection Easements

Parcels on which a temporary easement for the purposes of reconnection of a driveway is the only acquisition, are not generally condemned. If the owner is not agreeable to accept the offer or settlement, and district design determines the driveway can be constructed on existing right of way, the easement should be removed from the plans, a corrected plan sheet sent to the owner and the parcel voided. A letter accompanying the plan sheet should describe, in as much detail as possible, what the physical features of the proposed construction will be, and outline problems the design may cause the owner in their own reconnection of the driveway.

236.7.3 Administrative and Legal Settlements

236.7.3.1 Administrative Settlements

A. Purpose

Administrative settlements are made for the purpose of concluding negotiations for amounts considered reasonable, prudent and in the public interest, after reasonable efforts to negotiate agreements at the approved offers have failed.

Administrative settlements are not to be used for the purpose of correcting errors or omissions in an appraisal. Correcting the appraisal and making a revised offer is the method used to correct such errors and omissions.

B. Definition

An administrative settlement is any settlement authorized by the district right of way manager for a monetary consideration that differs from the approved estimate of just compensation. All settlements above the approved just compensation require written justification.

1. Right of Way Administrative Settlement

Right of way administrative settlements are those made by right of way personnel, prior to filing of a condemnation commissioners' award with the circuit court.

Reduction of approved salvage value is considered an administrative settlement. Settlements made in the mediation process are considered Administrative Settlements. All administrative settlements require documentation in the tract file that is described in 236.7.3.3A.

Depending on circumstances, it is suggested that administrative settlements be delayed until just prior to preparing for mediation or prior to submission of parcels to legal counsel for condemnation.

It is important that district right of way and regional counsel concur in settlements made during the condemnation process. Regional counsel should be advised of all settlements attempted or concluded after a project has been turned over to counsel for condemnation, so that a consensus is reached for the settlement, and that a motion to dismiss the parcel from the petition can be filed.

2. Legal Administrative Settlement

Legal administrative settlements are those made by regional counsel personnel after the condemnation commissioners have reported their award to the circuit court and before exceptions are filed. Settlements after exceptions are filed are referred to as Stipulated Settlements (approved by the circuit court) and are referred to by counsel merely as "settlements".

All settlements by regional counsel require the concurrence of right of way.

Regional counsel may approve settlements less than $250,000 with the concurrence of the district right of way manager.

Settlements less than $250,000, in which the district right of way manager does not concur must be approved by the Assistant Chief Counsel - Litigation and the Right of Way Director.

The Assistant Chief Counsel - Litigation and the Right of Way Director must approve settlements greater than $250,000.

236.7.3.2 Administrative Settlements Considerations

After a diligent effort has been made to consummate settlements for the approved amounts of just compensation, the district right of way manager should review each parcel not acquired by negotiation and determine whether to make administrative settlements, pursue mediation, or acquire by condemnation.

The district right of way manager should review all pertinent information relevant to consideration of a settlement, such as:

Approved appraisal reflects current market conditions
Approved appraisal considers all compensable elements of damage
Consideration in the appraisal of subjective elements of damage
Other appraisals of subject
The Negotiator's Report regarding damage factors claimed by the owner
Counteroffers made by the owner
The range of probable testimony
Recent jury verdicts for similar type properties
Estimated court costs
Opinion of legal counsel regarding probable result of proceeding with condemnation.

Note: Administrative settlements are not to be used to correct errors or omissions of the appraisal. . Correcting the appraisal and making a revised offer is the method used to correct such errors and omissions.

Revised Offer Based on Revised Appraisal

If it appears that the approved amount of just compensation does not reflect current market conditions or does not consider all compensable elements of just compensation, an updated appraisal should be secured through the appraisal section. A revised offer letter and revised valuation shall be promptly given to the owner. This is not considered an administrative settlement.

236.7.3.3 Making Administrative Settlements

Having determined that it is in the public interest to make an administrative settlement, the district right of way manager establishes an equitable amount for the settlement. The amount and other terms of the settlement are then relayed to the owner either verbally or in writing. Should the owner accept the proposal, the necessary conveyance documents are executed, showing the final settlement amount.

Administrative Settlement Justification Letter

At the conclusion of an administrative settlement, the district shall prepare a letter of justification that sets out the terms of the settlement and the factors upon which it was based. A copy of this letter is to be sent to the Right of Way Division with a copy of the Negotiators Report (Form 7-2.13), the negotiator's contact log and any other supporting documentation.

Administrative settlement justification is not to be based on perceived inadequacies of the appraisal process. If the appraisal, on which the offer was based, is subsequently believed to be deficient, a new or revised appraisal should be secured.

236.7.3.4 Review of Project Prior to Mediation and/or Condemnation

Before a project or part of a project is prepared for mediation or submitted to counsel for condemnation, the Right of Way Division, the Design Division and regional counsel personnel will review the project plans of the parcels being mediated or condemned. It is the decision of the district right of way manager to proceed with mediation, but regional counsel can provide an indication of those tracts that pose a unique legal concern that should be litigated rather than mediated. Owner's requests for design changes will be reviewed. Regional counsel is to be apprised of all rejected counteroffers and the reasons why administrative settlements were not made.

236.7.3.5 Approving and Processing Legal Settlements (Stipulated Settlements)

As previously stated, stipulated settlements are those made after a commissioners' award has been filed with the circuit court. Settlements less than $250,000 will be submitted to the circuit court for approval after the concurrence of the district right of way manager. Settlements greater than $250,000, or which the district right of way manager does not concur, require the concurrence of the Right of Way Director and the Assistant Chief Counsel - Litigation.

To accomplish these settlements, regional counsel or assistant regional counsel prepares a Pre-Trial Report. The comments of the district right of way manager and Right of Way Director should be considered by the Assistant Chief Counsel - Litigation, prior to final approval of the settlement.

236.7.3.6 Trial Report

A Settlement/Trial Report is to be prepared for each trial by the trial attorney in compliance with guidelines issued by the Chief Counsel and submitted to the Assistant Chief Counsel - Litigation for review. A copy of each Trial Report is to be provided to the Right of Way Director for distribution to all districts for informational purpose and use in preparing and supporting justification of administrative settlements.

236.7.4 Escrow Agreements, Deeds of Release and Purchase Agreement

236.7.4.1 Purpose

This information establishes MoDOT’s procedures for using escrow agreements, subordination of mortgage liens, deeds of release and purchase agreements in the acquisition of right of way and easements.

236.7.4.2 Escrow Agreements

An Escrow Agreement (fee owner) (Form 7-4.2A (CCO RW8)) or a Tenant Escrow Agreement (Form 7-4.2B (CCO RW10)), is used when an escrow agent is used (see 236.4.4.6).

The use of an Escrow Agreement is not required when obtaining right of way from another government agency.

When the acquisition involves only a temporary easement, it is not required to escrow the payment unless circumstances warrant it.

A. Escrow Agreement (Fee Owner)

1. When the Escrow Agreement is used

The escrow agreement shall be used to establish possession of occupied buildings, removal of buildings or equipment if retained by the owner, and provide for payment of taxes, liens, mortgages, or other encumbrances.

2. Contaminated Property Provision

Certain required paragraphs of the escrow agreement provide for owner disclosure of contamination, testing for contamination and termination of the acquisition under certain conditions of contamination. If there is an indication that the property being acquired is contaminated and is to be tested, the check for the right of way payment should not be delivered to the escrow agent until it is determined that the department will proceed with the acquisition, without further attention to the contamination.

B. Tenant Escrow Agreement

1. When Tenant Escrow Agreement is used

The Tenant Escrow Agreement (Form 7-4.2B, RW10) is used when necessary to ensure removal or possession of tenant-owned improvements or equipment retained by the tenant owner.

The Tenant Escrow Agreement may be used to acquire tenant interests prior to conveyance or condemnation of fee holder interests, only if a Release of Structures and Leasehold (Form 7-2.7D (CCO RW15)), is executed by the fee owner and attached to the Tenant Escrow Agreement.

2. Phrases for Release of Structures and Leasehold if Tenant Escrow Agreement is not used

In cases where it is deemed unnecessary to use the Tenant Escrow Agreement, one of the following paragraphs, as applicable, should be included in the Release of Structures and Leasehold.

"Party of the First Part hereby agrees to vacate and give peaceable possession of said above described property to Commission within ______ days after payment of the consideration. At the conclusion of this possession period all of the improvements being conveyed herein shall become the property of the Commission to dispose of in anyway it deems necessary."

"Party of the First Part hereby retains the right to salvage (describe structure) and hereby agrees to remove said structure within _______ days after payment of the consideration. Commission may, after said date and without repercussion from Party of the First Part, dispose of said structure in anyway it deems necessary."

"Party of the First Part hereby retains the right to salvage (describe structure) and hereby agrees to remove said structure by the _____ day of ________, 20___. Commission may after said date and without repercussion from Party of the First Part, dispose of said structure in anyway it deems necessary."

Requirements for the Retention of Improvements

Requirements for the Retention of Improvements (Form 7-4.2C,) must be incorporated with any Escrow Agreement or Agreement for Purchase of Real Estate. The form sets out the requirements of an owner or tenant that elects to retain improvements or equipment for removal from the acquired land.

236.7.4.3 Deed of Release and Partial Deed of Release

Obtaining Deeds of Release and Partial Deeds of Release (Form 7-4.3, RW25) is the responsibility of the escrow agent. When obtaining a release from a corporation, a corporation release form is normally used. For individuals, or partners a non-corporation release form is to be used. Most title companies, banks, and other lending institutions carry appropriate forms as part of their routine business. The escrow agent is to either prepare the release for execution by the lien holder or provide the lien holder with the legal description for inclusion in the release.

NOTE: The current Title Services Agreement does not require title companies to provide Deeds of Release. Some title companies are providing the service regardless of the contract provisions. The Title Services Agreement will be altered to include this service.

236.7.4.4 Agreement for Purchase of Real Estate

A. When Agreement for Purchase of Real Estate is used

The Agreement for Purchase of Real Estate (Form 7-4.4 (CCO RW10A)) is used when purchasing property or property rights and an escrow agreement is not being used as discussed in 236.4.4.6 Escrow Services.

The use of this agreement is not required when obtaining right of way from another governmental agency.

The use of this agreement is not required when only temporary rights are being acquired via a temporary easement unless circumstances warrant it.

B. Contaminated Property Provision

If there is an indication that the property being acquired is contaminated and is to be tested, the check for payment of the right of way should not be delivered to the owner until such time that it has been determined that the department will proceed with the acquisition.

236.7.4.5 Subordination of Mortgage Liens

The Partial Deed of Release is the most commonly used, and preferred, document when obtaining a partial acquisition from a mortgaged property. However, some lenders may be unwilling to execute a Partial Deed of Release but willing to execute a Subordination Agreement. Some lenders will provide their own Subordination Agreement while others are willing to execute either CCO Form RW 6 or RW 7.

Please note that neither of these documents serve as a partial release of a mortgage but merely subordinate the lender’s interest in the acquired property to the rights of the Commission. The appropriate document is usually signed prior to payrolling the acquisition and then held in escrow along with the conveyance documents until payment is made to the escrow agent.

236.7.5 Railroad, State and Federal Acquisitions

236.7.5.1 Purpose

This information establishes MoDOT’s procedures for acquiring railroad land and railroad right of way, federal land and land owned by the State of Missouri.

236.7.5.2 Railroads

A. General

The acquisition of land owned by railroad companies is a dual responsibility of district right of way and the Multimodal Operations Division (for additional information see 643.4 Railroads).

Plans approved for right of way purposes will indicate a separate parcel number for the operating railroad right of way and to each parcel of non-operating railroad property owned by a railroad.

District right of way is responsible for the acquisition of non-operating railroad property. The Multimodal Operations Division will acquire non-operating land only when they are also acquiring operating right of way from the same railroad.

The Railroad Liaison Engineer is responsible for acquisitions, agreements and/or documents related to operating railroad right of way. If both operating right of way and non-operating land are required from the same railroad, all necessary information will be provided to the Multimodal Operations Division.

B. Acquisition Procedures - Non-operating Railroad Land

The Multimodal Operations Division will acquire non-operating land if operating right of way is also being acquired from the same railroad.

Obtain title information for each parcel. The conveyance of the property to the railroad is sufficient unless the land involved is a recent purchase.
Appraise each parcel in accordance with current appraisal procedures.
Prepare a deed with metes and bounds description. A Warranty Deed] (Form 4-7.1A (CCO RW3)) or Quit Claim Deed (Form 4-7.2 (CCO RW2)) is desirable and have been accepted by railroads in some situations, or use an Easement for Highway Purposes (Form 4-7.4 (CCO RW5) or 4-7.5] (CCO RW23))

When only non-operating railroad land is involved, negotiate in accordance with current acquisition procedures. The name of the railroad's authorized representative may be obtained from the Multimodal Operations Division Railroad Liaison Engineer.

C. Acquisition Procedures - Operating Railroad Right of Way

Obtain title information for each parcel.
Appraise each parcel in accordance with current appraisal procedures.
Prepare a metes and bounds legal description for the easement area and provide to the Multimodal Operations Division to include in an easement or grade separation agreement.
Prepare and transmit to the Multimodal Operations Division an undated offer letter reflecting the approved just compensation. Tax proration phrases should not be included in the offer letter.
Transmit to the Multimodal Operations Division a Payment Estimate or Basis for Just Compensation and three plan sheets.

D. Limited Access from Railroads and Abutting Owners

When a proposed limited access right of way line intersects or coincides with a railroad right of way line, all easements should include a limited access clause for access rights from the railroad and adjoining owners of underlying rights.

Also, when the proposed limited access right of way line and the railroad right of way line coincide, it is necessary to acquire abutters' rights of direct access from owners of land and property rights adjoining the opposite side of the railroad right of way.

E. Acquiring Underlying Fee in Railroad Land and Right of Way

It is advisable to acquire the underlying fee rights of current adjoining successors in title, when acquiring non-operating railroad land.

When a proposed highway right of way crosses or intersects the right of way of an operating railroad, it may be necessary to acquire the underlying fee within the limits of the railroad right of way from adjacent owners who have reversionary rights. It is the discretion of the district right of way manager as to whether or not the underlying fee should be acquired. The necessity increases, as the likelihood of future railroad abandonment increases.

The description on deeds for each underlying fee owner will extend to the center of the railroad right of way or include the entire railroad right of way, when applicable, and will contain the wording "subject to railroad right of way."

F. Condemnation of Railroads

The Railroad Liaison Engineer is to be notified of the anticipated date of condemnation when the Multimodal Operations Division is acquiring railroad property.

District right of way will be responsible for including in condemnation both operating and non-operating railroad property that are not acquired by negotiation. Prior to preparation of a condemnation petition, determine from the Multimodal Operations Division the status of negotiations and a recommendation to include or exclude railroad property in condemnation. Railroad property is not to be included in the condemnation petition unless the Multimodal Operations Division has received proper authorization from the Department of Economic Development, Division of Motor Carrier and Railroad Safety.

236.7.5.3 Acquisition from Federal Agencies

When land or property rights are to be acquired from the United States Army, Air Force, Navy, Veterans Administration, or the Bureau of Indian Affairs, district right of way is authorized to negotiate directly with the agency. For acquisitions from all other federal agencies, application must be made through the Federal Highway Administration. District right of way is to prepare all required documents and transmit them to the Right of Way Division for handling with Federal Highway Administration.

236.7.5.4 Acquisition from State of Missouri Agencies

A. Acquisition from Conservation Commission, Department of Natural Resources and the University of Missouri

Other than MoDOT, the Conservation Commission, Department of Natural Resources and the University of Missouri are the only Missouri state agencies that have authority to convey real property. When MoDOT acquires land or property rights from one of these three agencies, district right of way shall:

contact the local agency representative
explain the acquisition
obtain permission to inspect
appraise the property or secure donation
review and approve Just Compensation
prepare offer letter
prepare Quit Claim Deed.

Forward appraisal, offer letter, Quit Claim Deed, and plan sheets to the Right of Way Division. They will:

negotiate directly with the agency
secure executed deed
process payroll
deliver check to the agency
transmit executed deed to the district for recording
transmit to district negotiator’s report and contact log
prepare and transmit to district administrative settlement letter if necessary

B. Acquisition from All Other State Agencies

State agencies, other than those identified above, are required, by statute, to obtain authority to convey real property by an act of the General Assembly. The Governor may execute conveyances of easement rights only without authorizing legislation.

1. Right of Way Acquisition

For all agencies other than those identified above state statute provides for the conveyance of fee simple interest in real property, by a specific act of the General Assembly that will be arranged by the Right of Way Division. The legislative act authorizes the Governor to execute the conveyance document, after it has been approved as to form by the Attorney General’s office.

2. Easement Acquisition

When only easement rights are to be acquired, the statute permits the Governor to convey an easement without legislative action, after the document is approved as to form by the Attorney General's Office.

The documents CCO RW5 and RW24 may be used for these acquisitions, with a suggested heading change to EASEMENT(S) ON STATE PROPERTY FOR HIGHWAY PURPOSES. This heading change does not require approval by Chief Counsel Office.

3. Acquisition Procedure

District right of way shall:

contact the local agency representative
explain the acquisition
obtain permission to inspect
appraise the property or secure donation
review and approve Just Compensation
prepare offer letter
prepare Quit Claim Deed

Forward appraisal, offer letter, Quit Claim Deed, and plan sheets to the Right of Way Division. They will:

negotiate directly with the agency
secure executed deed
process payroll
deliver check to the agency
transmit executed deed to the district for recording
transmit to district negotiator’s report and contact log
prepare and transmit to district an administrative settlement letter if necessary

236.7.6 Acquisitions of Maintenance Sites

236.7.6.1 Purpose

This information describes MoDOT’s procedures for acquiring maintenance sites, additions to existing sites and stockpile sites.

236.7.6.2 Site Selection and Approval

Site selection is the responsibility of the district subject to approval of the State Maintenance Engineer.

Once the location for a new maintenance site is chosen or the decision is made to expand a maintenance facility, the State Maintenance Engineer will request the Right of Way Division to determine the market value of the property. Upon receiving such a request, the Right of Way Division will request the district to secure appraisals of the property.

All property to be acquired for maintenance purposes shall be appraised in accordance with 236.6 Appraisal and Appraisal Review. In those instances where only a portion of the total property is to be acquired, the appraiser shall determine if the acquisition will damage the remaining property. If in his/her opinion the remaining property is damaged, the appraiser shall prepare a before and after appraisal of the property setting forth such damages. If in his/her opinion there is no damage to the remainder, the appraiser is to make a statement to that effect in the appraisal report and appraise the part to be acquired as a total tract.

Upon completion of the appraisal, it is to be reviewed in the district and submitted in accordance with 236.6 Appraisal and Appraisal Review. Subsequent to review of the appraisal by the Reviewing Appraiser, the Right of Way Division will advise the State Maintenance Engineer of the approved market value of the property and request concurrence in the acquisition at that amount.

236.7.6.3 Acquisition Procedure

Upon receipt of concurrence, the Right of Way Division will advise district right of way to initiate negotiations for acquisition of the property. A letter of offer on maintenance facilities (Exhibit 7-6.3), is to be used in making offers to property owners. District right of way should follow acquisition procedures outlined in the areas of payrolling, abstract or title insurance, and the use of Escrow Agents.

All maintenance sites and additions shall be acquired in fee simple title. The deed for conveyance shall be based on an accurate survey of the property. A professional land surveyor shall complete the survey. Where location of established and accepted existing land monuments are not known by department surveyors, it is desirable to obtain the services of the county surveyor or of a registered land surveyor familiar with the monuments in the area and have them establish or certify a beginning monument. After the beginning survey monument has been established or certified, either department personnel or the professional land surveyor that set the monument can complete the boundary survey of the maintenance site or addition. A plat of the established or certified monument with appropriate reference ties and a plat of the boundary survey should be filed with the Recorder of Deeds subsequent to obtaining possession.

Negotiations for all new or additions to maintenance facilities shall be based on approximate boundaries. If the owner is agreeable to selling the property for the approved amount, said survey will be made for preparation of the deed.

Appropriate efforts to acquire the property for the approved amount should be made; however, if the owner refuses the offer but through either a counteroffer or other means it is determined that the property can be purchased for an amount above the approved offer, so advise the Right of Way Division with a recommendation. The Right of Way Division will advise the State Maintenance Engineer. The State Maintenance Engineer will advise the Right of Way Division whether or not to proceed at the higher price. The district will be advised accordingly.

Upon successful negotiations for the maintenance site or addition, the payroll shall be completed in the same manner as other payrolls for right of way and submitted for Commission approval. Upon receipt of the payroll, the Right of Way Director will request Commission approval for acquisition of the addition or new site. Upon Commission approval, the Controller’s Office will process the payroll and cause a check to be issued for the purchase. Upon receipt of the check by the district right of way, the deed and survey plat will be recorded and transmitted to the Right of Way Division for permanent filing in the office of the Commission Secretary.

The Right of Way Division will then advise the State Maintenance Engineer that the acquisition is completed.

Should a property owner refuse to sell the desired property, the district should advise the Right of Way Director of the unsuccessful effort to negotiate a purchase. Condemnation proceedings should not be initiated for a maintenance location unless specifically instructed to do so by the Right of Way Division office.

The cost of appraisals, survey expenses, title work and other miscellaneous right of way items as well as the cost of the site itself shall be charged to the appropriate maintenance A.F.E.

236.7.7 1099-S Reporting of Acquisitions

236.7.7.1 Purpose

This information establishes MoDOT’s policies and procedures for reporting the acquisition of real estate or real property rights to the Internal Revenue Service (IRS).

236.7.7.2 1099-S Reporting Procedure

A. Transactions Reported

The Commission is responsible for reporting to the IRS real estate acquisitions in excess of $599. This reporting includes all acquisitions by either negotiated settlement or by condemnation. Specifically the following must be reported:

Real Estate acquired for Commission or Department use.
Property acquired either by purchase or condemnation for right of way or permanent easement.
Temporary easements if the easement is to last 30 years or is purchased in combination with a permanent easement or right of way.
Damages to remainders included with the amount paid for the acquisition of a permanent easement or right of way.

B. Transactions Not Reported

The following are exceptions to the requirements for reporting acquisitions to the IRS:

Purchases from corporations and governmental agencies.
Transactions where total compensation is less than $600.
Amounts paid for temporary easements when the duration of the easement is 30 years or less.

C. Determining Year of Reporting

Under IRS rules an acquisition has to be reported in the year the transaction is closed. For purchases this is the date the check is received by the escrow agent or the property owner. For condemned property it is the date the Commissioner's award is deposited with the court. The withdrawal of the award from the court is not considered in determining the date of closing nor the need to report the acquisition. All reporting must be made to Media Conversion in the month’s business of the transaction.

D. Reporting More Than One Owner

Transactions should be reported shortly after they are closed or condemned. In the case of condemned property it will be necessary to base the report on the award. When more than one property owner (other than husband and wife or partnerships) are involved in receiving proceeds from the acquisition, IRS regulations require that an allocation of the gross proceeds be requested by MoDOT. The request must be made at or before the time of closing or at the time the Commissioner's award is paid into court. This request should be made by certified mail with a copy to each taxpayer.

If the distribution cannot be determined or if an award is not drawn down from court, it will be necessary to report the entire amount to the IRS for each individual taxpayer. Those individuals whose property is acquired by negotiation yet still refuse to provide a distribution of funds should also receive a request by certified mail. The request should advise taxpayers that if an allocation of funds is not provided the entire amount will be reported as if paid to each taxpayer.

236.7.7.3 Taxpayer Identification Numbers

It is required that MoDOT request a taxpayer identification number (TIN) from all taxpayers at or before the time of closing. A husband and wife are treated as one taxpayer and only one TIN needs to be supplied. Partnerships and trust should have a TIN that is to be used instead of social security numbers of the individual partners or the beneficiaries of a trust.

Under IRS regulations, any person whose TIN is requested must furnish such TIN and certify that the TIN is correct. The solicitation shall be made by providing a written statement to the taxpayer that they are required by law to furnish a correct TIN, and that they may be subject to civil or criminal penalties for failing to furnish a correct TIN.

The procedures described in 236.7.2 should be followed in soliciting TINs from taxpayers during negotiations. The paragraph in the offer letter pertaining to TINs will satisfy the above requirement. Either an Internal Revenue Service Form W-9 or Request for Taxpayer Identification Number (Form 7-7.3) can be used with the request.

When dealing with a representative of the owner(s), it is permissible to request that the representative obtain the TIN from the taxpayer(s); however, if they fail to supply it, a request must be sent to the taxpayer(s) by certified mail.

A completed Form 7-7.3 will be retained in the parcel file and provided to the escrow agent.

A. Instructions for Preparing Request for Taxpayer Identification Number and Request for Allocation of Gross Proceeds

The Request for Taxpayer Identification Number (Form 7-7.3) and Request for Allocation of Gross Proceeds (Form 7-7.3A), has been prepared as a style sheet. Five fields; County, Route, Job, Parcel and Total Amount to be Allocated are to be completed by district right of way before giving the form to the property owner.

A sample letter (Form 7-7.3A) to accompany the request form is available.

236.7.7.4 Methods for Reporting to the IRS

Reporting of real estate transactions to the IRS will be done by one of the following four methods:

If the property is purchased and the transaction is closed by an escrow agent, the escrow agent is to handle the reporting to the IRS. The agreement for title and escrow services as described in 236.4.4.6 Escrow Services provides for this requirement. If a bank or other source is used as an escrow agent, the letter of understanding with the escrow agent should spell out this duty along with the other duties.
If the property is purchased and the transaction is not closed by an escrow agent, district right of way is responsible for gathering the data and completing Accounting Form A-976. The forms are to be forwarded to Media Conversion. A sample form (Form 7-7.4) is available.
If the property is condemned, it should be determined if the County Clerk is reporting the transaction to the IRS. If they are making the report, the department should not duplicate it. If the County Clerk is not reporting the transactions, district right of way is responsible for gathering the data and completing Accounting Form A-976 and forwarding it to Media Conversion.
The taxpayer should be given at least ten days after the written solicitation or at least ten days after the transaction has been closed to supply their TIN. If after that period of time they have still not provided the TIN, district right of way should complete an A-976.

If the owner will not provide a TIN, it will be replaced with a nine-digit code. The first eight digits will indicate the number of A-976's completed for the calendar year for which no TIN could be obtained. The ninth digit indicates the district submitting the A-976. For example the fifth A-976 in which no TIN was supplied for in District 8, would be coded as follows: 000000058.

236.7.7.5 Corrected A-976’s

If a trial or legal settlement occurs during the same tax year that the Commissioner's award was reported, submit a corrected A-976 to the Right of Way Division showing the new amount. The corrected A-976 should be submitted if the final amount is either more or less than the amount previously reported.

236.7.7.6 Reporting on Condemned Acquisitions

A. Reporting Jury Verdicts or Settlements in Subsequent Tax Years

If a jury verdict or settlement occurs in a subsequent tax year and the amount of the verdict or settlement is greater than the award, a normal A-976 for the difference between the verdict or settlement (not including interest) and the previously reported amount shall be submitted to Media Conversion.

If a jury verdict or settlement in a subsequent year is for an amount less than the award, no reporting is necessary.

If the jury verdict or settlement is on a parcel that was condemned in a year in which the department was not required to report transactions, an A-976 should be submitted for the difference in the verdict or settlement (not including interest) and the original award. Do not include the original award in this submission, even though MoDOT never reported the original award.

B. Reporting Payment of Interest

When a jury verdict or a legal settlement results in $600 or more of interest being due the property owner, the payment of interest is to be reported to the Internal Revenue Service. District right of way must supply the property owner’s name, address, TIN, telephone number, amount of interest paid and the date of payment to the Right of Way Division.

When more than one property owner (other than husband and wife or partnerships) are involved in receiving proceeds from the acquisition, the reporting of interest is to be broken down by the same ratio as the allocation of the gross proceeds among the taxpayers.

236.7.8 Contract Negotiation

236.7.8.1 Application for Employment as Contract Negotiator

Right of Way negotiators employed under agreement by the Missouri Department of Transportation must enjoy a good professional reputation and be able to provide evidence of significant experience in negotiating for eminent domain acquisitions.

All fee negotiators who desire to work for MoDOT on a contract basis must submit an Application for Employment as a Contract Negotiator (Form 7-8.1), to a district right of way office. When the application is received at the district office, a member of the right of way staff shall conduct an investigation to determine the qualifications of the applicant. This investigation shall be to the extent necessary to determine the abilities of the applicant and his/her general reputation within the profession. All references shown on the application shall be contacted in person or by telephone. All applicants must be recommended by at least two references.

After the investigation is completed and district right of way is satisfied with the applicant's qualifications, the district shall transmit to the Right of Way Division its recommendation together with one copy of the application and such other exhibits considered pertinent to the approval process. The Right of Way Division will review the application material to determine the applicant's qualifications and will advise the district office, in writing, of the approval or disapproval of the applicant.

236.7.8.2 Roster of Approved Contract Negotiators

The Right of Way Division will maintain A Roster of Approved Contract Negotiators (Form 7-8.2), listing all approved contract negotiators. The roster indicates the districts in which the individual is primarily available to work. Annually, the Right of Way Division will distribute current copies of the Roster of Approved Contract Negotiators to all districts. Local Public Agencies are directed to consult the districts for current rosters.

A letter setting out the additions and deletions to the previous roster will be provided on an annual basis. During the year notice of all roster additions and deletions will be sent to the districts.

236.7.8.3 Preliminary Contract Negotiation Fee Estimate

Prior to requesting proposals from Contract Negotiators, district right of way is to complete a Preliminary Contract Negotiation Fee Estimate (Form 7-8.3). This will document that consideration was given to the negotiations problems that are anticipated and should provide a basis for evaluating the reasonableness of the proposed fees. Requirements for estimating fees prior to contracting are set out in 49CFR 18.36(f).

NOTE: Under no circumstances is the prospective contractor to be made aware of the preliminary negotiations fees that were estimated by district personnel.

236.7.8.4 Proposal for Contract Negotiations

The availability of qualified contract negotiators varies from one location to another and/or from one time period to another, depending upon current economic conditions. Departmental policy provides for both the solicitation of competitive proposals and for non-competitive contracting. The availability of qualified contract negotiators and project time constraints may determine the bid process that will be followed.

Every effort shall be made to select the most qualified negotiators available for the particular assignments involved. Consideration should be given to anticipated negotiation problems, the talents and skills of the prospective negotiators, past performance, and present commitments. The district shall contact by letter, telephone, or in person each of the selected negotiators to determine their interest in submitting proposals for the required work. All contacts by telephone or in person shall be documented in the district file to show party contacted, date of contact, and brief summary of the conversation.

Each prospective negotiator must familiarize themselves with all aspects of the proposed negotiations assignment. A member of the district right of way staff shall be available to accompany prospective negotiators during a field review of each parcel if requested, in order to acquaint them with project plans, rights being acquired, and any unique problems that may be encountered.

After the negotiator is made aware of all facts regarding the prospective assignment, including all provisions of the current negotiators agreement, and appropriate instructions for conducting negotiations, he/she shall be asked to submit a proposal setting forth fees for each individual parcel.

The Proposal for Contract Negotiation (Form 7-8.4, RW33), shall be used by the negotiators for submission of their proposals. Use the paragraph that applies to either competitive or noncompetitive, as the situation warrants. The district shall complete all portions of proposal except fees, date, and signature of negotiator.

Each proposal packet shall contain the following:

Proposal for Contract Negotiations (Form 7-8.4 (CCO RW33)).
Copy of Negotiator Services Agreement (Form 7-8.5 (CCO RW34)).
Complete set of current right of way plans.
Copies of appropriate negotiations forms and form letters.
Envelope to district office with "Proposed Negotiation Fees - Do Not Open."

A. Competitive Proposals for Contract Negotiations

When the competitive proposal process for contracting negotiations is used, the district shall make a reasonable effort to secure proposals from those approved negotiators who have demonstrated expertise to accomplish the proposed negotiation assignments. The request for proposals shall be in writing and is to be mailed simultaneously to negotiators on the "approved" list.

It should be noted that negotiation agreements are to be awarded to the lowest and best bid. The term "lowest" pertains strictly to the dollar amount of the proposal. The term "best" takes into consideration the issue of timeliness, or delivery date, the comparative level of experience of the bidders, and also the past records of individuals with respect to quality of work product and adherence to agreement requirements and deadlines. In other words, though important, mere submission of the lowest cost proposal will not, in and of itself, assure that bidder of being awarded a particular agreement.

An envelope directed to District Office shall be provided with a notation prominently displayed "Proposed Negotiation Fees - Do Not Open." A proposal packet shall be provided to each negotiator. Every negotiator should be warned not to add or delete any terms or conditions or amend the proposal in any way. Altered or amended proposals will be rejected at the time of opening.

Electronic submissions or faxed submissions of proposals will not be accepted because confidentiality cannot be maintained.

The district support services manager shall retain all proposals received at the district office until time of opening.

1. Opening of Proposals

District right of way personnel and/or the district support services manager shall open all proposals at the prescribed time. Personnel supervising the opening shall publicly announce to all in attendance the amounts recited in each proposal.

2. Selection of Successful Proposal

Right of way personnel shall check the proposals and compare them with the preliminary fee estimate to determine if reasonable fees are being proposed. The lowest and best proposal is to be selected and the district will prepare a negotiations agreement for execution by the successful bidder. Agreements must contain the same provisions as the proposal.

B. Non-Competitive Proposals for Contract Negotiations

When staff workload or project completion considerations warrant, negotiations agreements may be awarded without competitive proposals, the district may proceed as follows:

District shall select negotiators from the current Roster of Approved Contract Negotiators. Every effort shall be made to select the most qualified negotiator available for the particular job. Consideration should be given to anticipated negotiation problems, negotiator’s experience, negotiator's past performance, pending assignments, etc. District personnel determine the selected negotiator’s availability to complete the work within a specified time.

All contacts shall be documented in the district file to show party contacted, date of contact, and brief summary of the conversation. Each prospective negotiator must be made completely familiar with all provisions of the negotiation agreement and any other requirements necessary for the completion of the negotiation assignment.

After the negotiator has been made aware of all facts regarding the prospective negotiations assignment, the district shall request a Proposal for Contract Negotiations (Form 7-8.4, RW33), setting forth a fee for each parcel. Since competitive proposals are not involved, the Competitive Proposal paragraph may be deleted or marked "not applicable." The proposal must be dated, signed, and submitted to the district office by the prospective negotiator.

The district right of way manager or a designated representative shall review each proposal and compare it with the preliminary fee estimate to determine if reasonable fees are being proposed. If the proposed fees are substantially higher than those reflected in the preliminary estimate, the district right of way manager shall decide whether the estimate was too conservative or the proposed fees appear excessive. Should it be determined that the proposed fees appear excessive, the district right of way manager or a designee shall negotiate with the negotiator in an effort to achieve acceptable fees. In the event negotiations fail to produce acceptable fees, the district has the option to negotiate with another contractor or initiate the competitive bid process.

When the proposed fee schedule is consistent with the preliminary estimate or the proposed fees are negotiated to be more in accord with the estimate, district may prepare a negotiations agreement in favor of the contract negotiator. The agreement must conform to the provisions of the proposal.

236.7.8.5 Negotiator Services Agreement

All Fee Negotiators performing negotiation work for the Missouri Highways and Transportation Commission shall do so by a fully completed and executed Negotiator Services Agreement (Form 7-8.5 (CCO RW34)). Negotiator Services Agreements with individuals or companies shall designate the individual(s) who shall perform the negotiation services. An officer shall execute all agreements with companies. Each agreement shall include a copy of the negotiator’s proposal (Form 7-8.4, RW33).

Three copies of the Negotiator Services Agreement, executed by the negotiator, shall be submitted to the district engineer. The district engineer shall review all contents of the proposed Negotiator Services Agreement and reject or execute the documents.

A. Distribution of Fully Executed Negotiations Agreements

One fully executed copy shall be returned to the contractor, one copy shall be retained by district right of way and one shall be submitted to the Right of Way Division.

B. Notice to Proceed

The agreement requires a written notice to proceed, with which the negotiator should be provided a current set of highway plans and other data necessary to accomplish the assignment.

236.7.8.6 Supplemental Negotiator Services Agreements

Subsequent to the execution of the initial agreement, it sometimes becomes necessary, due to plan changes or other considerations, to request additional negotiations services. If such services are required, they are to be secured by preparing an amended estimate, and in cooperation with the contractor, processing a supplemental negotiations agreement.

Supplemental Negotiator Services Agreement (Form 7-8.6, (CCO RW35)) is designed to minimize administrative efforts when it becomes necessary to add parcels to the original agreement, or change the scope of the required services.

The Supplemental Negotiator Services Agreement refers to specifications as recited in original agreement, so it becomes imperative that such requirements and specifications are effective at the date "new" parcels or required services are added to the original contract. New parcels shall be construed to mean tracts not previously included or where the plan or ownership revisions are so acute as to require additional services. Also a calendar period or time frame in which the work is to be completed must be specified.

Three copies of the Supplemental Negotiator Services Agreement, executed by the negotiator, shall be submitted to the district engineer. The district engineer shall review all contents of the proposed Supplemental Negotiator Services Agreement and reject or execute the documents. One fully executed copy shall be returned to the contractor, one copy shall be retained by district right of way and one shall be submitted to the Right of Way Division.

236.7.8.7 Contract Negotiator Performance Evaluation

The last paragraph of Proposal for Contract Negotiation (Form 7-8.4, RW33), advises the contractor that his/her overall performance will be carefully evaluated and that failure to perform at an acceptable level can result in their removal from MoDOT’s Roster of Approved Contract Negotiators.

Consistent with the statements of the proposal, the district right of way manager shall evaluate the performance of the contract negotiator after completion of all negotiations assignments in a given assignment. The performance shall be rated (Form 7-8.7). It is essential that this report be fully completed.

For the evaluation process to be meaningful all answers must accurately reflect the conclusions of the person completing the form, based on a thorough analysis of the contractors performance on that specific agreement. Some questions may require more than a simple yes or no answer. If that is the case the comments should be written on a separate page and attached to the evaluation report.

Properly used the Performance Evaluation can be of considerable value to MoDOT in effectively managing contract negotiations work. It is intended to serve as the documentary basis for the retention or dismissal of contract negotiators. If a contractor is to be removed from the Roster of Approved Contract Negotiators based on poor performance he/she must be notified in writing.

A. Distribution of Evaluation Form

Upon completion of the district section of the Performance Evaluation, it is to be signed by the preparer, a copy retained by the district, and one copy to the Right of Way Division. It is emphasized that the Performance Evaluation is strictly for MoDOT’s internal use and is not to be given to contract negotiators.

B. Notification to Contract Negotiator of Unsatisfactory Performance

If the district right of way manager concludes that the negotiator’s work falls below an acceptable level in terms of quality and/or timeliness, a letter signed by the district engineer shall be mailed to the contract negotiator advising that their performance was found to be unsatisfactory. A copy of this letter is to be submitted to the Right of Way Division for the negotiator's permanent file. Special circumstances may warrant a recommendation for the removal of a negotiator from the Roster of Approved Contract Negotiators as a result of their first evaluation. In such case the negotiator may be notified of removal without prior notification of unsatisfactory performance.

C. Notification to Contract Negotiator of Removal from Roster of Approved Contract Negotiators

If after receiving a letter notification of unsatisfactory performance, the negotiator’s work on a subsequent assignment results in a Performance Evaluation with a recommendation to remove from the Roster of Approved Contract Negotiators, a letter signed by the Right of Way Director shall be mailed to the contract negotiator advising that they have been removed from the Roster of Approved Contract Negotiators in accordance with MoDOT policy.

236.7.9 Special Benefit Acquisitions

236.7.9.1 Purpose

This information establishes MoDOT’s procedures for partial acquisitions from properties that result in Special Benefits to the remainder.

236.7.9.2 Special Benefit Acquisitions

Special Benefits are those benefits accruing to the land adjacent to the public improvements that do not accrue to the public at large. When an appraisal reveals an enhancement in the value of an owner's remaining property the enhanced value may merely be reflected in a lowered estimate of Just Compensation, or it may result in a zero indication of Just Compensation. Both situations are to be considered Special Benefit cases.

Special benefits reflected in an appraisal must be supported with concurrence from district counsel and written documentation attached to the appraisal.

Missouri law provides that benefits accruing to a property as the result of a highway project can be applied to offset acquisition costs and damage amounts. It is the policy of MoDOT that dual compensation amounts will be offered to owners of residentially improved properties, to reflect the acquisition area with special benefits to the remainder, and the acquisition of the entire property at its before value.

This policy of dual offers for residentially improved properties is implemented at the discretion of the Right of Way Director. It would be solely the discretion of the Right of Way Director to apply this policy to other than residential property. The size and value of a remainder may dictate MoDOT’s ability to acquire entire large, higher valued properties.

A. Dual Offers for Special Benefits on Residentially Improved Properties

It is the policy of MoDOT to extend dual offers at the initiation of negotiations for properties where residential improvements are affected.

It is the policy of MoDOT that no single-family dwelling that has contributory value, whether occupied or unoccupied at the effective date of appraisal or date of taking, shall be compensated at less than its contributory value due to the assessment of special benefits. It is further the policy that an occupied dwelling must be compensated for on the basis of its value as a residential use.

First Offer

If the acquired dwelling is occupied or unoccupied, and contributes to the before value, the first offer would reflect at least the value of the dwelling and supporting land and improvements.

If the acquired dwelling is unoccupied and does not contribute to the before value, the first offer would be a reduced or zero offer.

If the acquired dwelling is unoccupied and has no contributory value before the acquisition, the first offer will be the reduced or zero offer.

Second Offer

In every case, the second offer will reflect the total before property value, based on its highest and best use before the acquisition.

B. Acquisition of Residential Dwelling With Contributory Value – Whether Occupied or Unoccupied

(Occurs when the highest and best use before acquisition is residential, and the highest and best use after acquisition is a higher, more valuable use.)

If there are special benefits to a remainder and an occupied or unoccupied dwelling which has value in the before situation is to be taken, a dual offer will be prepared and extended to the owner at the initiation of negotiations. Offers to acquire an occupied or unoccupied dwelling will include compensation based on the contributory value of the dwelling, residential outbuildings, and supporting land, plus any additional contributory value of other land area in the acquisition, which will have been set out in the appraisal review. The second offer will be the entire before value as set out in the appraisal review.

C. Acquisition of an Occupied Dwelling With No Contributory Value to the Current Highest and Best Use

(Occurs when the highest and best use of the land, before the acquisition, is greater than residential.).

If there are special benefits to a remainder and an occupied dwelling which has no contributory value in the before situation is to be taken, a dual offer will be prepared and extended to the owner at the initiation of negotiations. The first offer will be at least the value of the dwelling, residential outbuildings, and supporting land, approved in the appraisal review. The second offer will be the entire before value as set out in the appraisal review.

D. Acquisition of Unoccupied Dwelling That Has No Contributory Value to the Current Highest and Best Use

If there are special benefits to a remainder and an unoccupied dwelling, which has no contributory value in the before situation is to be taken, the property shall be appraised for its highest and best use in both the before and after situation with no special consideration being given the improvements.

No dual offer would be necessary in this situation.

@@ Line 1,124: / Line 1,124: @@
 When staff workload or project completion considerations warrant, negotiations agreements may be awarded without competitive proposals, the district may proceed as follows:
-District shall select negotiators from the current [[media:236.7 Roster of Approved Contract Negotiators (Form 7-8.2).pdf|Roster of Approved Contract Negotiators]].  Every effort shall be made to select the most qualified negotiator available for the particular job.  Consideration should be given to anticipated negotiation problems, negotiator’s experience, negotiator's past performance, pending assignments, etc.  District personnel determine the selected negotiator’s availability to complete the work within a specified time.
+District shall select negotiators from the current [[media:236.7 Roster of Approved Contract Negotiators (Form 7-8.2) Sept 09.pdf|Roster of Approved Contract Negotiators]].  Every effort shall be made to select the most qualified negotiator available for the particular job.  Consideration should be given to anticipated negotiation problems, negotiator’s experience, negotiator's past performance, pending assignments, etc.  District personnel determine the selected negotiator’s availability to complete the work within a specified time.
 All contacts shall be documented in the district file to show party contacted, date of contact, and brief summary of the conversation. Each prospective negotiator must be made completely familiar with all provisions of the negotiation agreement and any other requirements necessary for the completion of the negotiation assignment.