TRAFFIC CONTROL IMPROVEMENT

DEVELOPMENT AGREEMENT

 

          THIS Traffic Control Improvement Development Agreement is made this _____ day of November, 2011, by and between the City of Lawrence, Kansas, a municipal corporation, and Hy-Vee, Inc., an Iowa corporation.

 

RECITALS

 

A.      The City of Lawrence, Kansas (“City”), is the holder of that public Right of Way on which Crossgate Drive, between Clinton Parkway and West 24th Place, is located in Lawrence, Douglas County, Kansas.

 

B.      Hy-Vee, Inc. (“Hy-Vee”), owns certain real property (“the Hy-Vee Tract”) in Lawrence, Douglas County, Kansas, that abuts and adjoins Crossgate Drive, between Clinton Parkway and West 24th Place (the legal description of the Hy-Vee Tract is affixed hereto as Exhibit A and is incorporated herein by reference).

 

C.      Hy-Vee has filed with the Lawrence-Douglas County Metropolitan Planning Department an application for a Special Use Permit, SUP No. 7-4-11, including a proposed Site Plan, which would permit Hy-Vee to improve the Hy-Vee Tract in order to conduct business (“the Hy-Vee C-Store”) thereon.

 

D.      As part of its improvement of the Hy-Vee Tract and for the benefit of the Hy-Vee C-Store, Hy-Vee has requested from the City access from the Hy-Vee Tract to Crossgate Drive (“the Hy-Vee Access Point”) (a map depicting the of the Hy-Vee Access Point is affixed hereto as Exhibit B and is incorporated herein by reference).

 

E.       The City recognizes that the Hy-Vee Access Point may affect the present flow of traffic on Crossgate Drive between Clinton Parkway and West 24th Place.

 

F.       The City has agreed, subject to Hy-Vee’s execution of this Traffic Control Improvement Development Agreement (“Agreement”) and compliance with its terms, to permit Hy-Vee to have access to Crossgate Drive, between Clinton Parkway and West 24th Place, at the Hy-Vee Access Point.

         

AGREEMENT

 

NOW, THEREFORE, in light of the mutual promises and obligations contained herein and in exchange for ten dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

SECTION 1. Recitals. The recitals are hereby incorporated into this Agreement by reference as if set forth in full.

 

SECTION 2. Definitions.

 

(a)     “City Traffic Analysis” means the ordinary and uniformly applied method utilized by the City to ascertain the potential existence of a Traffic Problem, including all studies, records, files, analyses, and other documents used, created, or relied upon by the City in performing the City Traffic Analysis.

 

(b)     “Crash” means any vehicular crash evidenced by an accident report filed by the City of Lawrence Police Department and occurring on Crossgate Drive between the north edge of the roundabout located at the intersection of Crossgate Drive and West 24th Place and the intersection of Crossgate Drive and Clinton Parkway. Notwithstanding the previous sentence, however, the following shall not be deemed a “Crash” for purposes of determining the Critical Crash Rate: (1) any vehicular crash occurring south of the north edge of the roundabout located at the intersection of Crossgate Drive and West 24th Place; (2) any vehicular crash caused by or related to left-hand turns into or out of the Clinton Parkway frontage road; and (3) any vehicular crash occurring during the Normalization Period.   

 

(c)     “Critical Crash Rate” means the occurrence of at least five (5) Crashes during any year, beginning on the date of the expiration of the last Normalization Period.

 

(d)     “Hy-Vee Traffic Analysis” means such traffic studies, reports, and analyses necessary or advisable, in Hy-Vee’s discretion and at Hy-Vee’s sole cost and expense, to investigate a potential Traffic Problem, the circumstances of Crashes identified by the City, the relative safety of the Hy-Vee Access Point compared to similar intersections in Lawrence, Kansas, and to evaluate potential mitigation methods.

 

(e)     “Normalization Period” means either (1) the six (6) month period after the City’s issuance of a certificate of occupancy for the Hy-Vee C-Store; or (2) following the mitigation of any Traffic Problem under this Agreement, the six (6) month period after the construction of any Tier 1 or Tier 2 Traffic Control Mechanism.

 

 

 

(f)      “Tier 1 Traffic Control Mechanism” means traffic calming devices, medians, or other mechanisms that do not limit or affect full access at the Hy-Vee Access Point: e.g., a speed table north of the roundabout at the intersection of Crossgate Drive and West 24th Place, a traffic median installed to prevent left turns into or from the Clinton Parkway frontage road, etc.

 

(g)     “Tier 2 Traffic Control Mechanism” means traffic control mechanism(s) at the Hy-Vee Access Point that do not physically restrict full access at the Hy-Vee Access Point, but reasonably limit the intensity of full access: e.g., a sign restricting left-hand turns into or from the Hy-Vee Access Point during peak-weekday hours, etc.

 

(h)     “Tier 3 Traffic Control Mechanism” means traffic control mechanism(s) at the Hy-Vee Access Point that physically restrict full access at the Hy-Vee Access Point: e.g., the installation of a traffic median to restrict the Hy-Vee Access Point to ¾ access (or right-in right-out access), etc.

 

(i)      A “Traffic Problem” occurs when the City Traffic Analysis and the Hy-Vee Traffic Analysis identify a traffic safety concern caused by the Hy-Vee Access Point that requires mitigation under this Agreement, either as agreed by the parties or as determined by the City Commission pursuant to the terms of this Agreement.

 

SECTION 3. City Traffic Analysis. Following any Normalization Period, if the number of Crashes, as that term is defined in Section 2(b) supra, equals or exceeds the Critical Crash Rate, the City shall have the right to perform the City Traffic Analysis to ascertain whether there is a potential Traffic Problem. If the City Traffic Analysis identifies a potential Traffic Problem that may require mitigation, the City Manager or the City Engineer shall, in a seasonable manner, by certified mail, give notice to Hy-Vee of the potential Traffic Problem and provide Hy-Vee with a copy of all reports, test results, documents, and studies performed as part of the City Traffic Analysis. Hy-Vee’s address for notices pursuant to this Agreement is 5820 Westown Parkway, West Des Moines, IA 50266, Attn: Real Estate Dept. The City’s address for notices pursuant to this Agreement is P.O. Box 708, Lawrence, KS 66044, Attn: City Manager (with a separate copy to Director, Legal Department).

 

SECTION 4. Hy-Vee Traffic Analysis. If any City Traffic Analysis identifies a potential Traffic Problem and gives notice to Hy-Vee, Hy-Vee shall have a period of sixty (60) days following Hy-Vee’s receipt of the City’s notice and accompanying documentation to perform the Hy-Vee Traffic Analysis and to provide a written report to the City. Failure to provide the City with a report within the sixty (60) day period shall be deemed acquiescence on the part of Hy-Vee that there is a Traffic Problem.

 

SECTION 5. Mitigation of Traffic Problem. The identification and mitigation of any Traffic Problem shall be considered and remedied using objective data from the City Traffic Analysis and the Hy-Vee Traffic Analysis, as follows:

 

(a)     Progressive Mitigation. If the parties agree that there is a Traffic Problem, then the parties shall attempt to use a progressive approach to mitigate that Traffic Problem. The parties agree to select the least intrusive corrective measure that is reasonably calculated to mitigate the Traffic Problem, taking into consideration existing improvements and previously constructed Traffic Control Mechanisms, if any. The parties recognize that the use of Tier 3 Traffic Control Mechanisms may result in the diminution of value of the Hy-Vee Tract for use as the Hy-Vee C-Store. Consequently, Tier 3 Traffic Control Mechanisms are solutions of last resort. Before resorting to a Tier 3 Traffic Control Mechanism, the parties must agree that no Tier 1 Traffic Control Mechanism or Tier 2 Traffic Control Mechanism would mitigate the existing Traffic Problem.

 

(b)     Cooperative Approach. Within thirty (30) days of the City’s receipt of the Hy-Vee Traffic Analysis, representatives of the City and Hy-Vee shall confer in good faith to analyze the potential Traffic Problem, discuss the relevance of applicable Crashes, determine if a Traffic Problem exists, evaluate potential solutions for any such Traffic Problem, and agree upon an appropriate course of action. Any agreement of the parties in mitigating a Traffic Problem (or concluding that no corrective measures are necessary) shall be memorialized in writing during such thirty (30) day period. The City and Hy-Vee may mutually agree in writing to extend the thirty (30) day review period, if needed to finalize the written agreement between the parties.

 

(c)     Dispute Resolution. If the City and Hy-Vee are unable to agree (1) that a Traffic Problem exists, or (2) which Traffic Control Mechanism would mitigate a Traffic Problem, then the City Commission shall hear and resolve such dispute during a public hearing held as soon as reasonably possible following the thirty (30) day period (or any extensions thereto) described in Section 5(b), supra.

 

SECTION 6. Hy-Vee Maximum Contribution. If the City and Hy-Vee determine that a Traffic Problem exists and that it requires mitigation under this Agreement, then the City shall cause the approved Traffic Control Mechanism(s) to be installed in accordance with the terms of the parties’ written agreement described in Section 5(b), supra.  After causing the approved Traffic Control Mechanism(s) to be installed, the City shall transmit an invoice detailing the costs of the Traffic Control Mechanism(s) to Hy-Vee.  Within thirty (30) days following Hy-Vee’s receipt of the City’s invoice, Hy-Vee shall reimburse the City for the City’s actual, documented, reasonable expenses of installing the approved Traffic Control Mechanism(s). However, in no event shall Hy-Vee’s share of the aggregate cost of Traffic Control Mechanisms under this Agreement (regardless of the timing of such costs) exceed $50,000.00 (the “Hy-Vee Maximum Contribution”). In addition, if a Tier 3 Traffic Control Mechanism is constructed by the City and all or any portion thereof is paid by Hy-Vee pursuant to his Agreement, then Hy-Vee’s obligation to reimburse the City for any other traffic improvements shall cease immediately following the installation and payment toward such Tier 3 Traffic Control Mechanism. For example, if the City and Hy-Vee determine that a Tier 3 Traffic Control Mechanism is the only available remedy to mitigate a Traffic Problem, then Hy-Vee shall have no obligation to pay for any contemporaneous or subsequent Tier 1 or Tier 2 Traffic Control Mechanism.

 

SECTION 7. Integration. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all negotiations, preliminary agree­ments, and all prior and contemporaneous discussions, agreements, and under­standings of the parties in connection with the subject matter hereof. 

 

SECTION 8. Amendment, Modification. No amendment, change, or modification of any of the terms, provisions, or conditions of this Agreement shall be effec­tive unless made in writing and signed by all par­ties. 

 

SECTION 9. Waiver. Waiver of any provision of this Agreement shall not be deemed a waiver of future compliance therewith and such provision shall remain in full force and effect. 

 

SECTION 10. Savings Clause. In the event that any pro­vision of this Agreement is held invalid, illegal, or unenforce­able, in whole or in part, the remaining provisions of this Agreement shall not be affected thereby and shall continue to be valid and enforceable. 

 

SECTION 11. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Kansas. 

 

SECTION 12. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective legal representatives, heirs, successors, and permitted assigns. 

 

SECTION 13. Construction. The titles or captions of para­graphs in this Agreement are provided for convenience of refer­ence only, and shall not be considered a part hereof for purposes of interpreting or applying this Agreement and such title or captions do not define, limit, extend, explain, or de­scribe the scope or extent of this Agreement or any of its terms or condi­tions. Words and phrases herein shall be construed as in the singular or plural number, and as masculine, feminine, or neuter gender, according to the context. This Agreement is the result of negotiations between the parties and, as such, shall not be construed in favor of one party over another. Rather, this Agreement shall be construed in accordance with its ordinary meaning.

 

Attachments:           Exhibit “A” - Legal Description of the Hy-Vee Tract

                        Exhibit “B” - Visual Depiction of the Access Point

 

 

 

 

[SIGNATURES APPEAR ON THE FOLLOWING PAGES]

 

IN WITNESS WHEREOF, the City and Hy-Vee have executed this Traffic Control Improvement Development Agreement with the full intent to bind themselves and their successors and assigns.

 

CITY OF LAWRENCE, KANSAS, a municipal corporation

 

 

 

________________________________

DAVID L. CORLISS

City Manager

 

 

ACKNOWLEDGMENT

 

 

THE STATE OF KANSAS               )

                                                )        ss:

THE COUNTY OF DOUGLAS         )

 

          BE IT REMEMBERED, that on this ____ day of _________________, 2011, before me the undersigned, a notary public in and for the County and State aforesaid, came David L. Corliss, as City Manager of the City of Lawrence, Kansas, who is personally known to me to be the same person who executed this instrument in writing, and said person fully acknowledged this instrument to be the act and deed of the aforementioned entity.

 

          IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal, the day and year last written above.

 

 

 

                                                                   ________________________________

                                                                   Notary Public

 

My Appointment Expires:

IN WITNESS WHEREOF, the City and Hy-Vee have executed this Traffic Control Improvement Development Agreement with the full intent to bind themselves and their successors and assigns.

 

HY-VEE, INC., an Iowa corporation

 

 

 

________________________________

DENNIS AUSENHUS

Senior Vice President

 

 

 

________________________________

STEPHEN MEYER

Secretary

 

 

ACKNOWLEDGMENT

 

 

THE STATE OF __________        )

                                                )        ss:

THE COUNTY OF ________         )

 

          BE IT REMEMBERED, that on this ____ day of _________________, 2011, before me the undersigned, a notary public in and for the County and State aforesaid, came Dennis Ausenhus and Stephen Meyer, as Senior Vice President and Secretary, respectively of Hy-Vee, Inc., who are personally known to me to be the same persons who executed this instrument in writing, and said persons fully acknowledged this instrument to be the act and deed of the aforementioned entity.

 

          IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal, the day and year last written above.

 

 

 

                                                                   ________________________________

                                                                   Notary Public

 

My Appointment Expires:

 

EXHIBIT “A”

Legal Description of Hy-Vee Tract

 

Lot 1, Block One, Inverness Park Plaza Addition No. 5, a Replat of Lot 1, Block 1, Inverness Park Plaza Addition No. 1, a Subdivision in Lawrence, Douglas County, Kansas

 

EXHIBIT “B”

Visual Depiction of the Access Point