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SLT Agreement Final Draft

 

AGREEMENT

Project No. 10-23 K 8392-02

DATE: September 1, 2002

PARTIES: Secretary of Transportation of the State of Kansas

Baker University, Baldwin, Kansas

Douglas County, Kansas

PURPOSE: This agreement is made in connection with Kansas Department of Transportation Project for the construction of Hwy K-10 east from the completed work at Hwy K-10 and Hwy 59 to a connection with Hwy K-10 east of the City of Lawrence. Project 10-23 K 8392-(and sub-projects) is the successor project to 10-23 K 3359-01 the master project under which the K-10 Lawrence By-Pass was to be constructed.

I. DEFINITIONS.

Secretary The State of Kansas Secretary of Transportation.

Baker Baker University acting through its corporate authority.

Douglas County Douglas County Kansas acting through its Board of County Commissioners.

Corps The United States Army Corps of Engineers acting through the Kansas City District District Engineer. Project duration is ongoing.

Projects 01 Project: Project for environmental documentation, preliminary engineering, plans and right of way acquisition.

02 Project: Initial grading project. Project shall be let within 10 days of ROD. Project duration shall be from award of project contract until date of final acceptance. Any action or event designated to occur during the duration of, or as part of, the 02 Project shall be considered as part of Phase I.

03 Project. Project to be designated as Kansas Department of Transportation Project No. 10-23 K 8392-03, for grading, surfacing and bridges, or grading and surfacing, for Hwy K-10 from existing Hwy K-10 at Hwy 59 to existing Hwy K-10 east of Lawrence, Kansas. Project duration shall be from award of project contract until date of final acceptance. Any action or event designated to occur during the duration of, or as part of, the 03 Project shall be considered as part of Phase II.

Drainage District The Wakarusa Drainage District acting through its corporate authority.

Baker Wetlands Real property owned by Baker with the legal description as set out in Attachment "A".

Mitigated Wetlands The Baker Wetlands with the additions provided for by this agreement.

Application The application of the Secretary to the Corp for authority to fill and dredge wetlands required under Section 404 of the Clean Water Act (33 U.S.C. 1344) as part of Project No. 10-23 K 8392-01, 02, 03.

ROD The Record of Decision to be issued by the Corps at the conclusion of the Environmental Impact Statement process in the Project. For the purpose of requiring any obligation to act or perform under this agreement the ROD shall refer only to a decision designating the 32^nd Street alignment as the preferred alignment.

32^nd Street Alignment The alignment selected by the Secretary for the construction of Hwy K-10 east from the completed work at Hwy K-10 and Hwy 59 to a connection with Hwy K-10 east of the City of Lawrence. The alignment is conceptually depicted in Attachment "B".

Mitigation Plan The comprehensive plan proposed by the Secretary as mitigation for the 32^nd Street alignment. The Mitigation Plan encompasses requirements necessary for the issuance of a Project 404 Permit.

Santa Fe Site The mitigation site constructed for Project 10-23 K 3359-01 currently owned by Douglas County.

Vacate or Vacation As used in this agreement either term shall reference action by Douglas County having the legal effect of terminating its interest in road right of way regardless of the interest held or how it was acquired.

Street Designations In this agreement the use of the common or City street designation of:

31^st Street refers to Douglas County Route N 1300,

Louisiana refers to Douglas County Route E 1400,

Haskell Avenue refers to Douglas County Route E 1500.

II. AGREED ACTS.

A. Secretary. As part of the Project the Secretary will undertake as follows.

1. The Secretary will transfer, or cause to be transferred, to Baker the following tracts of land:

Phase I

Tract A. The SE 1/4 of Section 13, R 19, T 13, containing 160 acres more or less (except residential tract in NW 1/4 of SE 1/4 of Section 13 to be acquired and transferred separately as Tract C).

Tract B. Ninety acres, more or less, in the NE 1/4 of Section 13, R 19, T 13 north of 35^th Street, west of Louisiana Street and south of the 32^nd Street right of way, as will be shown on the construction plans for the 03 Project, except the residential tract in SW 1/4 of NE 1/4 of Section 13 to be acquired and transferred separately as Tract G.

Tract C. Residential tract in NW 1/4 of SE 1/4 of Section 13.

Phase II

Tract D. An as yet to be determined number of acres lying east of existing Haskell Avenue, north of the Wakarusa river, south of south right of way line of Hwy K-10 and west of relocated Haskell Avenue, except the Santa Fe mitigation site to be transferred separately as Tract E. The locations of K-10 and relocated Haskell Avenue shall be as shown in the construction plans for the 03 Project.

Tract E. The Santa Fe site.

Tract F. Residential tract in the NW 1/4 of SE 1/4 of Section 13, R 19, T 13.

Tract G. Residential tract in SW 1/4 of the NE 1/4 of Section 13, R 19, T 13.

Tract H. Oxbow adjacent to Wakarusa River in Section 18, R 20, T 12 (Kohler tract).

Tract I. Oxbow adjacent to Wakarusa River in Section 18, R 20, T 12 (Six tract).

Tract J. That part of the 20 acre tract presently owned by Kansas Wildlife and Parks south of the south right of way line of the K-10 32^nd Street alignment as will be shown on the construction plans for the 03 Project.

2. All identified Tracts are depicted as to location in Attachment "C". Unless requested by Baker any existing structures on any tract will be razed or removed. Notwithstanding any such request all property will be cleared where necessary for construction or the acquisition of borrow.

3.. The Secretary will make payments to Baker as follows:

Phase I

$400,000. Funding for wetland conversion and habitat establishment on the tracts identified in II(A)(1) as Tracts A, B,C, F,G. Any portion of this amount not expended for wetland conversion or habitat establishment shall be retained by Baker and applied to wetland maintenance or Baker wetland programs.

Phase II

B. $5,010,000. This payment constitutes payment to Baker for the following items.

1. An education and research facility to be operated by Baker at a location within the mitigated wetlands.

2. Equipment for the maintenance of the Baker Wetlands.

3. Costs associated for hiring and retention of personnel necessary for future maintenance of Baker and mitigated wetlands.

4. Costs related to improvement of areas graded for camping sites, adjacent parking facilities and access roads.

5.Funding for wetland conversion and habitat establishment on the tracts identified in II(A)(1) as Tracts D,H,I,J.

6. Any portion of this amount not expended for the purposes identified shall be retained by Baker and applied to wetland maintenance or Baker wetland programs.

4. Phase I work.

The Secretary will enter one more contracts for the grading of tracts identified in II(A)(1) as Tracts A, B, C. The grading will be in accordance with plans prepared by the Secretary based on requirements specified by Baker. All grading for the purpose of wetland creation or improvement related to the Application shall be subject to any requirement of the Corps notwithstanding Baker specifications. Any excess material resulting from the grading shall become the property of the Secretary.

5. Phase II work or activity.

a The Rural Water District No.4 water line and the City of Baldwin’s water line currently in place in Section 18, R 20, T 12 servicing Southeast Douglas County and the City of Baldwin shall be reestablished within the right of way limits of relocated Haskell Avenue. The location of the reestablished lines shall be as determined by the Secretary with the approval of Douglas County and as shown on the construction plans for the 03 Project. The respective reestablished lines shall be of the same capacity and of like material as the existing lines. Costs to reestablish the lines shall be the responsibility of the Secretary except costs necessary to connect at the north and south ends of the reestablished lines. Any cost or expense for increase in capacity or upgraded materials shall be the responsibility of Rural Water District No.4 or the City of Baldwin. Reestablishment of either line is contingent upon the execution of an agreement between the Secretary and the respective owners and the issuance by Douglas County to the owners of permits for location of the reestablished line on County right of way. The existing water lines shall remain in place and remain the responsibility of the respective owners. Failure of this provision shall not be grounds for non-performance by any Party to this agreement.

b. Grade a maximum of two sites for camping areas, adjacent parking facilities and access roads at locations designated by Baker.

c. Upon vacation by Douglas County of existing Louisiana Street and Haskell Avenue the Secretary shall remove and excavate existing Louisiana Street and Haskell Avenue within the limits of the vacated right of way. The vacated right of way shall be graded to the elevations of the existing adjacent ground. The right of way shall be graded so as to be suitable for conversion to wetlands or native grass as conditions dictate. All material removed shall become the property of the Secretary.

d Upon vacation of 31^st Street by Douglas County the Secretary shall remove and excavate existing 31^st Street within the limits of the vacated right of way. The excavated right of way shall be graded to the elevations of the existing adjacent ground. The right of way shall be graded so as to be suitable for conversion to wetlands or native grass as conditions dictate. All material removed shall become the property of the Secretary.

e The Secretary shall, on right of way agreed to by Douglas County, reconstruct 31^st Street, Louisiana Street and Haskell Avenue. The Secretary shall reconstruct the identified roadways consistent with the typical sections shown in Attachment "D". All roads shall be surfaced with asphaltic concrete. The location of the reconstructed roads and the tie-ins to the existing roads shall be as shown in Attachment "E". The extension of Louisiana Street north from the north limits of the 32^nd Street alignment of K-10 right of way to 31^st Street shall be contingent on the acquisition by or dedication to local government of the necessary right of way. If the new right of way is not obtained relocated Louisiana Street will connect at its current location at 31^st Street, extend west along the south line of the K-10 right of way to the half section line of Section 13, R 19, T 13 and then south along the half section line.

B. Baker

1. Baker agrees to transfer title to not more than 70 acres in the Baker Wetlands to the Secretary for use by the Secretary as right of way for the Project. The property to be transferred will be as shown on the construction plans for the 03 Project. For the purposes of this agreement Baker agrees that property to be conveyed is as depicted in Attachment "B".

2. Baker shall, at the request of the Secretary, enter into any agreement required by the Corp regarding the maintenance of any wetlands identified by the Corps as necessary for the issuance of a permit contemplated by the Application of the Secretary in connection with the project. Any such agreement shall be contingent upon adequate funding available to Baker from the funding provided under this agreement. Notwithstanding any other provision of this agreement Baker agrees to prioritize agreement funding to comply with any Corps requirements.

3. Baker, at the request of the Secretary, shall undertake any other action required by the Corps, within the limits of the funding provided by the Secretary under this agreement, to complete and satisfy the terms of the Section 404 Permit applied for by the Secretary in connection with this project.

4. Baker shall provide written specifications for elevations, channelization or drainage for use in the grading plans contemplated in II(A)(1)(4) no later than November 1, 2002. The specifications shall be in sufficient detail as to permit take off of construction plans and notes.

5. At the request of the Secretary Baker shall provide information and execute any documents or applications necessary for any approval required by the Corps, Douglas County, Kansas Division of Water Resources or the Drainage District necessary to accomplish the grading contemplated by II(A)(1)(4).

6. Baker shall be responsible for all utility connections to the Education and Research facility.

7. Baker agrees to make available to the Secretary, at no cost, a location designated by the Secretary in Tract B, for contractor staging and operations during performance of the project work. This tract shall not exceed 10 acres. The Secretary’s right to utilize this tract for Project work shall expire no later than the date of final acceptance of the Project.

C. Douglas County

1. Douglas County, consistent with state law, at the request of the Secretary, shall transfer ownership of the Santa Fe site to Baker, or at the option of the Secretary, to the Secretary.

2. As requested by the Secretary Douglas County shall, consistent with state law, vacate all interest it has to 31^st Street right of way where the right of way adjoins or abuts the Haskell Indian Nations University property. If necessary, other than by operation of law, Douglas County shall, by an appropriate instrument, transfer the interest held by Douglas County in 31^st right of way to the governing authority of Haskell Indian Nations University.

3. At the request of the Secretary Douglas County shall, consistent with state law for such action, vacate:

a. Its interest in existing Louisiana Street from 31^st Street south to the end of the north wearing surface of the existing Louisiana Street bridge over the Wakarusa River. If necessary other than by operation of law, Douglas County shall by execution of the appropriate instrument transfer ownership of the existing Louisiana Street right of way to Baker.

b. Its interest in existing Haskell Avenue south of the north right of way limits of the K-10 32^nd Street alignment, as shown on the construction plans for the 03 Project, to the north end of the wearing surface of existing Haskell Avenue bridge over the Wakarusa River. If necessary, other than by operation of law, Douglas County shall by execution of the appropriate instrument transfer ownership of the existing Haskell Avenue right of way to Baker.

4. Douglas County agrees to obtain any approvals or authorizations as may be necessary from the City of Lawrence, Wakarusa Township or the Wakarusa Drainage District for any work necessary to complete the vacation and relocation of 31^st Street, Louisiana Street or Haskell Avenue.

5. At the request of the Secretary Douglas County, as permitted by state law, shall acquire property designated by the Secretary for resale or transfer to the Secretary or a party designated by the Secretary. Any costs or expenses incurred under this provision shall be the responsibility of the Secretary.

III. SEQUENCE.

A. Within thirty days (30) days from the issuance of the ROD the Secretary shall tender to Baker instruments transferring ownership of the properties identified in II(A)(1) Tracts A and B. The transfers shall be conditioned on the letting by the Secretary of the 03 Project work within two years from the date of the ROD.

B. The lump sum payment of $400,000 shall be paid to Baker at such time as the award of the contract for the 02 Project work .

C. The lump sum payment $3,950,000 shall be due and payable on the date of the award of the contract for the 03 Project by the Secretary.

D. The grading work identified in II(A)(4) for the tracts designated in II(A)(1), Tract A and B, shall be advertized for letting by the Secretary within thirty (30) days of the issuance of the ROD. The grading for tracts, other than Tracts A and B as designated in II(A)(1), shall be undertaken and completed during the 03 Project work or at such earlier time as the Secretary determines.

E. The construction necessary for the removal and relocation of 31^st Street, Louisiana Street and Haskell Avenue shall be undertaken as part of the 03 Project work. The construction for removal and relocation shall be phased as shown in the construction plans for the 03 Project. The Secretary agrees to phase construction so that Thirty-first Street, Louisiana Street and Haskell Avenue shall remain open to traffic until such time as the respective relocations are complete and the relocated roads are operational. Open to traffic is understood to encompass periods of temporary closure or detours if necessary to the efficient progress of construction.

F. The reestablishment of the Rural Water District # 4 water line and the City of Baldwin water lines shall be undertaken as part of the 03 Project work.

G. Douglas County shall transfer ownership of the Santa Fe site no later than the date of the letting of the 03 Project work.

H. Tracts C, D, E, F, G, H and I identified in II(A)(1) shall be transferred to Baker prior to final acceptance of the 03 Project.

I. Baker shall transfer the property identified in II(B)(1), as shown in Attachment "B", at the request of the Secretary and within ten days of receipt of a legal description for the property.

IV. GENERAL.

A. The Secretary’s performance of all or any part of this agreement is contingent on the availability of funding of the Project as part of the 1999 Comprehensive Transportation Program. The determination of funding availability is solely within the discretion of the Secretary and is not subject to review.

B. The Secretary’s performance of all or any part of this agreement is contingent on the issuance by the Corps of a ROD designating the preferred alignment as 32^nd Street by December 1, 2002, or at any later date agreed to by the parties. The designation in the ROD of any other alignment shall terminate any obligation of the Secretary to perform any portion of this agreement.

C. The Secretary’s performance of all or any part of this agreement is contingent on a finding by the Corps that wetland creation, enhancement, preservation components are sufficient to satisfy Section 404(b) requirements arising from the Secretary’s Section 404 application and the issuance of a Section 404 Permit by December 1, 2002, or such later date as agreed to by the parties.

D. Each party shall bear its cost of defense in any case to which it is made a party in litigation related to the this agreement. Any party enjoined or restrained from performance of any obligation under this agreement for more than ten (10) calender days may withdraw and this agreement shall be terminated. In any litigation related to this agreement, if the parties to the agreement interests are aligned, the Secretary, at his discretion, may undertake a mutual defense.

E. All right of way necessary to construct the Project shall be acquired by the Secretary except as my occur under Section II(C)(5). No later than the date of final acceptance for the 03 Project work Douglas County shall assume full responsibility for all roads constructed by the Secretary under this agreement which are outside the limits of K-10 right of way as shown on the 03 Project construction plans, except Louisiana Street where it crosses K-10 right of way shall be maintained by Douglas County according to the terms of a maintenance agreement. Where necessary the Secretary shall execute such instruments as may be necessary to transfer ownership of right of way to Douglas County.

Notwithstanding the dates of actual signature the Parties agree that the effective date of this agreement is:_______________________.

 

Secretary

 

____________________________

E. Dean Carlson

Secretary of Transportation

Baker University

____________________________

Daniel Lambert, President

Baker University

Douglas County

____________________________

Jere McElhaney

Chairman, Douglas County Commission

 

 

ATTEST:

___________________________

County Clerk

 

 

 

 

 

 

 

 

Attachment "A"

 

Such portion of Section 18, Township 13 South, Range 20 East of the 6^th Principal Meridian according to the following description: Beginning at the southeast section corner monument of Section 18 running northerly on the east section line of Section 18, 3938.12 feet, thence westerly parallel to the north section line of Section 18, 1327.0 feet, thence northerly parallel to the east section line of Section 18, 1057.28 feet, thence in a northwesterly direction to a point on the west section line of Section 18, 154.52 feet southerly from the northwest corner monument of section 18, a distance of 3887.13 feet, thence southerly on the west section line of Section 18 to the southwest corner of Section 18, 5155.81 feet, thence easterly on the south section line of Section 18 to the center line of the Wakarusa River 697 feet west of the quarter section monument, then along the center of the Wakarusa River northeasterly and southeasterly, 2450 feet, to the south line of Section 18, a point 675 feet east of the quarter section monument, thence easterly to the point of beginning, being a total distance of 6254.07 feet, along the southern boundary line, amounting to 556.68 acres more or less. Also, that portion of the northeast quarter of the northeast quarter of Section 19, Township 13 South, Range 20 East of the 6^th Principal Meridian lying north of the Wakarusa Creek (River), being 16 acres more or less, and being in the aggregate 572.68 acres more or less.