DEVELOPMENT AGREEMENT
THIS Development Agreement ("Agreement") is made this _____ day of ___________________, 2013, by and between the City of Lawrence, Kansas, a municipal corporation, Lawrence Jaybird, Ltd., a Texas limited partnership, and the Lawrence H. James Trust, a Kansas trust.
RECITALS
A. The Kansas Department of Transportation ("KDOT") is the holder of that Right of Way on which 23rd Street/K-10 Highway ("the 23rd Street Right of Way") is located in Lawrence, Douglas County, Kansas.
B. Pursuant to an agreement with KDOT, the City of Lawrence, Kansas ("the City"), maintains the 23rd Street Right of Way.
C. Lawrence Jaybird, Ltd. ("Lawrence Jaybird"), a Texas limited partnership, is the owner of that real property ("Lawrence Jaybird Property"), commonly known as 1420 West 23rd Street, Lawrence, Douglas County, Kansas, and bearing the following legal description, to-wit:
Lots 7 and 8, in Block 2, Southwest Addition No. 5, an Addition to the City of Lawrence, in Douglas County, Kansas (being replatted as MOLIOR 23, a Minor Subdivision Replat of Lots 7 and 8, Block 2, in Southwest Addition No. 5, in the City of Lawrence, Douglas County, Kansas);
D. The Lawrence H. James Trust ("the James Trust"), a Kansas trust, is the owner of that real property ("the James Trust Property"), commonly known as 1502 West 23rd Street, Lawrence, Douglas County, Kansas, and bearing the following legal description, to-wit:
The East 4 feet of Lot 20 and all of Lot 21, in Block 4 in the Replat and Subdivision of Blocks 3 & 4 in Southwest Addition in the City of Lawrence, Douglas County, Kansas;
E. Lawrence Jaybird wishes to redevelop its property, has submitted to the City a Site Plan, and has agreed, in exchange for the approval of that Site Plan, to redevelop an access entrance ("Access Drive")(identified in the map, which is affixed hereto as Exhibit A) that would permit ingress and egress from the 23rd Street Right of Way to and from the Lawrence Jaybird Property and the James Trust Property for the mutual benefit of both properties (collectively, herein, "Properties").
F. The City has agreed, subject to Lawrence Jaybird's and the James Trust's execution of this Development Agreement and compliance with its terms, to reimburse Lawrence Jaybird for certain costs associated with redevelopment of the Access Drive.
AGREEMENT
NOW THEREFORE, in light of the mutual promises and obligations contained herein, and in exchange for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the parties, the parties agree as follows:
1. Site Plan. As a condition for receiving Site Plan approval for the redevelopment of its property, Lawrence Jaybird agrees to redevelop the Access Drive (as identified on Exhibit A). Lawrence Jaybird further agrees that no work shall be commenced on the redevelopment of its property or the Access Drive until the City approves the Site Plan.
2. Scope of Work. Once the Site Plan is approved, Lawrence Jaybird agrees that, at its sole cost and expense, it shall cause the Access Drive to be redeveloped in a good and workmanlike manner and in accordance with the approved Site Plan. Lawrence Jaybird also agrees that the work on the Access Drive shall be completed to the reasonable satisfaction of the City. The City agrees that Lawrence Jaybird shall be permitted to redevelop the Access Drive without posting a bond or providing a letter of credit. The James Trust agrees to permit Lawrence Jaybird reasonable access to its property in order to perform the work.
3. Request for Reimbursement. Once the redevelopment of the Access Drive is completed to the satisfaction of the City, Lawrence Jaybird shall submit to the City Engineer an itemized list requesting reimbursement for costs and expenses. The list shall be accompanied by copies of vouchers, invoices, payroll records, cancelled checks, or other documents necessary to substantiate Lawrence Jaybird’s itemized costs and expenses related to the redevelopment of the Access Drive.
4. Reimbursement. Once the City Engineer has reviewed the documents submitted by Lawrence Jaybird to substantiate its itemized costs and expenses and finds that said costs and expenses are substantiated, the City Engineer will approve reimbursement to Lawrence Jaybird for the actual costs and expenses of the project to a maximum of $30,000.00. If the costs of the project exceed $30,000.00, then Lawrence Jaybird agrees that it will be responsible for any costs and expenses that exceed $30,000.00.
5. The Parties’ Covenants. The City, Lawrence Jaybird, and the James Trust hereby covenant and warrant as follows:
a. Lawrence Jaybird and the James Trust agree that they shall share equally the costs and expenses of repairing, replacing, restoring, cleaning, removing snow and ice, and otherwise maintaining the Access Drive in good condition, capable of continued use for their intended purpose, ordinary wear and tear excepted.
b. The City, Lawrence Jaybird, and the James Trust agree not to erect or to allow any barriers, improvements, facilities, parking, or other obstructions that would unreasonably impair access to or use of the Access Drive. In the event that the City or KDOT must, in the course of doing work in the 23rd Street Right of Way, temporarily close the Access Drive for any reason, the City hereby agrees to provide Lawrence Jaybird and the James Trust with a suitable alternative by which to access their respective properties.
c. The City, Lawrence Jaybird, and the James Trust agree not to alter or modify the Access Drive in a manner that would unreasonably interfere with, impede, or impair the continued use or access to the Access Drive. In the event that the City or KDOT must permanently close the Access Drive for any reason, then the City agrees to provide the Lawrence Jaybird and the James Trust with a suitable alternative by which to access their respective properties.
d. Lawrence Jaybird and the James Trust agree to maintain comprehensive general liability insurance on their respective portions of the Access Drive. Lawrence Jaybird and the James Trust further agree to name the City as an additional insured on that insurance.
e. There is currently no need for a cross-access agreement between Lawrence Jaybird and the James Trust, because the planned Access Drive will permit access to a frontage road that serves the Properties. Under the conditions existing as a result of this Development Agreement, the City agrees that it will not prohibit future access to the properties through the frontage road without providing a suitable alternative by which to access their respective properties. However, in the event that the James Trust Property is redeveloped at a later date, the City, Lawrence Jaybird, and the James Trust agree that access to the properties may be reviewed at that time and may be modified at the discretion of the City.
6. Indemnification. During the time that this Development Agreement is in effect, Lawrence Jaybird and the James Trust, and any successor, assign, or licensee thereof, agree to indemnify, defend, save, and hold harmless the City, its officers, commissioners, agents, employees, grantees, and assigns, from and against all claims, actions, liabilities, damages, costs, expenses, and judgments, including attorneys’ fees, which relate to, arise out of, or are in any way related to Lawrence Jaybird's or the James Trust's use, construction or maintenance of the Access Drives, on account of any injury to persons or damage to property. This paragraph shall not apply to any injury or damage caused by the negligence of the City. Additionally, the City agrees not to waive any defenses that it might assert to any such claim.
7. Term and Termination. This Development Agreement shall expire, terminate, and automatically sunset one (1) year after the later of the following: (a) completion and approval of the redevelopment work in accordance with Section 2, above, or (b) payment of the reimbursement in accordance with Section 4, above. If, for any reason, Lawrence Jaybird is unable to redevelop the Access Drive in good and workmanlike fashion, in accordance with the Site Plan or to the City’s reasonable satisfaction, or is otherwise unable to complete the redevelopment of the Access Drive, then the City shall have the right, after giving written notice of the defect and in the event Lawrence Jaybird fails to cure that defect within ninety (90) days of the date of the letter, to terminate this Agreement or, at its option, to complete the project as shown on the Site Plan.
8. Binding Effect. This Development Agreement shall, at all times, be binding upon the City, the Lawrence Jaybird Property, and the James Trust Property, and all owners of the said properties and all parties claiming by, through, or under them, and shall run with the land, and shall be for the benefit of and shall oblige all future owners of the Properties; provided, however, that the rights, duties, and obligations of each owner, as set forth herein, shall cease with the termination of his, her, or its ownership of their respective property, or portion thereof, except for those duties and obligations arising during the period of his, her, or its ownership.
9. Severability. If any section, sentence, clause, or phrase of this Development Agreement is found to be invalid by any court of competent jurisdiction, it shall not affect the validity of any remaining provision of this Development Agreement.
10. Governing Law. This Development Agreement shall be construed and enforced in accordance with and shall be governed by the laws of the State of Kansas.
[SIGNATURES APPEAR ON THE FOLLOWING PAGES]
IN WITNESS WHEREOF, the parties have executed this 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 _________________, 2013, 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:
LAWRENCE JAYBIRD, Ltd., a Texas Limited Partnership
________________________________
______________
______________
ACKNOWLEDGMENT
THE STATE OF ______________ )
) ss:
THE COUNTY OF _____________)
BE IT REMEMBERED, that on this ____ day of _________________, 2013, before me the undersigned, a notary public in and for the County and State aforesaid, came _____________________________________, 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:
THE LAWRENCE H. JAMES TRUST, a Kansas Trust
________________________________
Lawrence H. James, Co-trustee
________________________________
Mary A. James, Co-trustee
ACKNOWLEDGMENT
THE STATE OF ______________ )
) ss:
THE COUNTY OF _____________)
BE IT REMEMBERED, that on this ____ day of _________________, 2013, before me the undersigned, a notary public in and for the County and State aforesaid, came Lawrence H. James and Mary A. James, Co-trustees of the Lawrence H. James Trust, a Kansas Trust, who are personally known to me to be the same persons 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: