AGREEMENT

THIS AGREEMENT is made this ___ day of ____________, 2011, between the Secretary of Transportation for the State of Kansas, for and in the name of the State of Kansas, hereinafter referred to as “Secretary,” the City of Lawrence, Kansas, hereinafter referred to as “City,” the Board of County Commissioners of Douglas, Kansas, hereinafter referred to as “County,” and TAT Land Holding Company, L.L.C, a Kansas limited liability company, SOJAC Land Company, L.L.C., a Kansas limited liability company, JDS Kansas, L.LC., a Kansas limited liability company, Kentucky Place, L.L.C., a Kansas limited liability company, Venture Properties, Incorporated, a Kansas corporation, and Scotsdale Properties, L.L.C, a Kansas limited liability company, hereinafter collectively referred to as “Mercato,” The Secretary, City, County, and Mercato are collectively referred to as the “Parties.”

WITNESSETH:

WHEREAS, the Secretary is the legal owner of record in certain real property interests (hereinafter referred to as the “Access Opening”) situated in Lawrence, Douglas County, Kansas. Said real property interests are legally described as follows, to-wit:

RIGHT OF ACCESS to and from the abutting public highway over and across a line in the Southwest Quarter of Section 29, Township 12 South, Range 19 East of the 6^th P.M., Douglas County, Kansas, described as follows: Commencing at the Southeast corner of said Quarter Section; thence on an assumed bearing of South 88 degrees 04 minutes 36 seconds West, coincident with the South line of said Quarter Section, 840.13 feet; thence North 01 degree 55 minutes 24 seconds West, perpendicular to said South line, 121.15 feet to the Northerly right of way line of U.S. Highway No. 40 and the POINT OF BEGINNING; FIRST COURSE, thence North 86 degrees 31 minutes 32 seconds West, coincident with said Northerly right of way line, 60.27 feet to the POINT OF TERMINATION.

WHEREAS, the County is the owner of a certain public road that intersects with westbound US-40 (hereinafter referred to as “WB US-40”) in Douglas County, Kansas in the vicinity of the westbound Kansas Highway Ten (hereinafter referred to as “K-10”) entrance ramp. Said public road is commonly referred to as and hereinafter referred to herein as “E. 902 Road”;

WHEREAS, Mercato is the owner of certain real property interests (hereinafter referred to as “Mercato Property”) in the vicinity of the Access Opening and E. 902 Road; and

WHEREAS, it will benefit all Parties herein to close and eradicate E. 902 Road intersection with WB US-40 and permit the construction of a new public road that is within the city limits of the City, is owned by the City, and is within the Access Opening.

NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein and other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

ARTICLE I—THE SECRETARY AGREES:

1. To permit the City to use the Access Opening for a public road (hereinafter referred to as “Mercato Lane”) via a duly issued Highway Permit for Highway Access (D.O.T. Form 309) (“Access Permit”).

2. To revoke any expressed or implied access permit allowing E. 902 Road to intersect with WB US-40.

3. To duly issue a Highway Permit for Use of Right-of-Way (D.O.T. Form 304) for the removal and eradication of the E. 902 Road intersection with WB US-40. Said removal and eradication shall be done pursuant to those terms set out in Article IV, paragraph one (1).

ARTICLE II—THE CITY AGREES:

1. To duly issue all permits to Mercato to construct Mercato Lane within the Access Opening. It is understood that any permit granted by the City shall be subject to Construction Plans approved by the Secretary and the City. It is further understood that Mercato will construct Mercato Lane pursuant to the terms set forth Article IV, paragraph two (2).

2. To release, acquit, hold harmless, and forever discharge the Secretary and the Secretary’s successors and assigns from any and all claims, demands, losses, damages, actions, causes of action or suits of any kind or nature whatsoever (collectively referred to as “Liability”), arising out of or in connection with the terms and performance of this Agreement, except to the extent such Liability is caused by the negligence of the Secretary.

ARTICLE III—COUNTY AGREES:

1. To allow for the legal closure of the intersection of E. 902 Road and WB US-40. It is understood that Mercato will be responsible for the eradication of said intersection as set forth in Article IV, paragraph one (1).

ARTICLE IV—MERCATO AGREES:

1. To pay all costs and perform all labor associated with the closure of E. 902 Road intersection with WB US-40. This shall include the removal and eradication of E. 902 Road insofar as it is not needed for the construction or improvement of any platted public road through the development process of the Mercato Property. Furthermore, Mercato shall restore the former road bed of E. 902 Road and adjacent area disturbed by the said removal and eradication to a condition equal to or better than the real property adjacent to the former road bed. This shall include but not be limited to grading and establishing a grass cover. It is understood that the Secretary shall be the party to grant final approval as to the work performed pursuant to this paragraph and within the Secretary’s right-of-way. It is further understood and agreed that Mercato shall not commence construction to remove and eradicate E. 902 Road intersection with WB US-40 until after (i) the construction of Mercato Lane is completed; and (ii) said construction satisfies Article IV, paragraph three (3).

2. To pay all costs and perform all labor associated with the construction of the intersection of Mercato Lane and WB US-40. Said intersection shall be constructed pursuant to the construction plans submitted to and approved by the City and Secretary through the highway right-of-way permitting process.

3. As a condition precedent to the closure of E. 902 Road, Mercato agrees to develop a public road system to provide access to George Williams Way from those private properties lying north of the Mercato Property. Closure of E. 902 Road shall take place after (i) the completion of the Mercato Lane intersection with WB US-40, and (ii) after the completion of a public road system that will tie the remaining portion of the E. 902 Road with George Williams Way. It is understood that the County shall be the party to grant final approval as to Mercato satisfying the foregoing conditions prior to removal and eradication of E. 902 Road. Moreover, immediately upon completion of Mercato Lane and a public road system that will tie in the remaining portion of the E. 902 Road with George Williams Way, as required herein, E. 902 Road intersection with WB US-40 shall be barricaded in compliance with the Manual on Uniform Traffic Control Devices (MUTCD) and the commencement with due diligence the eradication of E. 902 Road, pursuant to Article IV, paragraph one (1), shall begin within sixty (60 days). The Developer’s compliance with the MUTCD shall be to the Secretary and the City’s satisfaction.

4. To barricade Mercato Lane in compliance with the Manual on Uniform Traffic Control Devices (MUTCD) until it is connected to the public road system, and the public road system tying in the remaining portion of the E. 902 Road with George Williams Way is completed and E. 902 Road intersection with WB US-40 is barricaded, as required in paragraph three (3) above.

5. To comply with all applicable laws, rules, ordinances, code, and/or regulations when performing or carrying out the terms of the Agreement.

6. To release, acquit, hold harmless, and forever discharge the Secretary, County, and City and their successors and assigns from any and all claims, demands, losses, damages, actions, causes of action or suits of any kind or nature whatsoever (collectively referred to as “Liability”), both known or unknown, to person and property, arising out of or in connection with Mercato’s acts or omissions and the terms and performance of this Agreement, except to the extent such Liability is caused by the negligence of the Secretary, City, or County.

ARTICLE V—THE PARTIES AGREE:

1. The “Special Attachment No. 1” attached hereto, pertaining to the implementation of the Civil Rights Act of 1964, is hereby made a part of this Agreement.

2. The provisions found in Contractual Provisions Attachment (Form DA-146a, Rev. 1-01) which is attached hereto, are hereby incorporated into this Agreement and made a part thereof.

3. The final approved construction plans for CITY PROJECT No. PW1018: MERCATO (6TH STREET, WEST OF GEORGE WILLIAMS WAY) GEOMETRIC IMPROVEMENTS CITY OF LAWRENCE, KANSAS (referred to herein as “Construction Plans”) are hereby incorporated herein by this reference and made a part of this Agreement as if set forth at length herein.

4. That the Secretary and the City will be responsible for final inspection of the construction of the WB US-40 intersection with Mercato Lane. The Secretary and City reserve the right to request further work or request modification of existing work if either party discovers the construction is not in compliance with the Construction Plans.

5. That the Secretary has no further obligations or duties than those set forth in Article I herein.

6. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in anyway.

7. Wherever used, singular shall include the plural, plural the singular, and use of any gender, including non-gender, shall include all genders. Words used in the present tense include past and future, and vice versa.

8. That this Agreement does not create, grant, convey, transfer, or vest, any property right or interest in the Access Opening, only a right and privilege to use said Access Opening.

9. This Agreement contains the entire agreement between the Parties regarding the subject matter of this Agreement. All prior oral or written statements relating to the subject matter of this Agreement are merged into this written Agreement, and no promise or agreement not herein expressed has been made by the Parties. None of the provisions contained in the Agreement may be changed except by an instrument in writing signed by all of the Parties hereto.

10. This Agreement and all contracts entered into under the provisions of this Agreement shall be binding upon the Parties and their successors and assigns.

11. No third party beneficiaries are intended to be created by this Agreement, nor do the Parties herein authorize anyone not a party to this Agreement to maintain a suit for damages pursuant to the terms or provisions of this Agreement.

[Signature Page Immediately Below.]
IN WITNESS WHEREOF the Parties hereto have caused this Agreement to be signed by their duly authorized officers on the day and year first above written.

SECRETARY OF TRANSPORTATION:

I, Jerome T. Younger, P.E., Deputy Secretary for Engineering and State Transportation Engineer, pursuant to the authority delegated to me by the Secretary of the Kansas Department of Transportation under K.S.A. 75-5005, hereby certify that I have authority to act on behalf of the Secretary of Transportation when the Secretary is absent or unavailable, and further certify I have signed the above foregoing document in accordance with that authority.

Kansas Department of Transportation

Debra L. Miller, Secretary of Transportation

By: ________________________________

Jerome T. Younger, P.E.

Deputy Secretary for Engineering and

State Transportation Engineer

CITY OF LAWRENCE, KANSAS:

By: _____________________________

David L. Corliss, City Manager

DOUGLAS COUNTY, KANSAS:

BOARD OF COUNTY

COMMISSIONERS OF

DOUGLAS COUNTY, KANSAS

By: _____________________________

Jim Flory, Chair

Date: _______

ATTEST:

By: _____________________________

Jameson D. Shew,

Douglas County Clerk

MERCATO:

KANSAS DEPARTMENT OF TRANSPORATION

Special Attachment

To Contracts or Agreements Entered Into

By the Secretary of Transportation of the State of Kansas

NOTE: Whenever this Special Attachment conflicts with provisions of the Document to which it is attached, this Special Attachment shall govern.

THE CIVIL RIGHTS ACT OF 1964, and any amendments thereto,

REHABILITATION ACT OF 1973, and any amendments thereto,

AMERICANS WITH DISABILITIES ACT OF 1990, and any amendments thereto,

AGE DISCRIMINATION ACT OF 1975, and any amendments thereto,

EXECUTIVE ORDER 12898, FEDERAL ACTIONS TO ADDRESS ENVIRONMENTAL JUSTICE IN MINORITY POPULATIONS AND LOW INCOME POPULATIONS 1994, and any amendments thereto,

49 C.F.R. Part 26.1 (DBE Program), and any amendments thereto

NOTIFICATION

The Secretary of Transportation for the State of Kansas, in accordance with the provisions of Title VI and Title VII of the Civil Rights Act of 1964 (78 Stat. 252), §504 of the Rehabilitation Act of 1973 (87 Stat. 355) and the Americans with Disabilities Act of 1990 (42 USC 12101), the Age Discrimination Act of 1975 (42 USC 6101), the Regulations of the U.S. Department of Transportation (49 C.F.R., Part 21, 23, and 27), issued pursuant to such ACT, Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations (1994), and the DBE Program (49 C.F.R., Part 26.1), hereby notifies all contracting parties that, the contracting parties will affirmatively ensure that this contract will be implemented without discrimination on the grounds of race, religion, color, gender, age, disability, national origin, or minority populations and low income populations as more specifically set out in the following “Nondiscrimination Clauses”.

CLARIFICATION

Where the term “consultant” appears in the following “Nondiscrimination Clauses”, the term “consultant” is understood to include all parties to contracts or agreements with the Secretary of Transportation of the State of Kansas.

Nondiscrimination Clauses

During the performance of this contract, the consultant, or the consultant’s assignees and successors in interest (hereinafter referred to as the “Consultant”), agrees as follows:

1) Compliance with Regulations: The consultant will comply with the Regulations of the U.S. Department of Transportation relative to nondiscrimination in federally-assisted programs of the U.S. Department of Transportation (Title 49, Code of Federal Regulations, Parts 21, 23 and 27, hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this contract.

2) Nondiscrimination: The consultant, with regard to the work performed by the consultant after award and prior to the completion of the contract work, will not discriminate on the grounds of race, religion, color, gender, age, disability, national origin or minority populations and low income populations in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The consultant will not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix B of the Regulations.

3) Solicitations for Subcontractors, including Procurements of Material and Equipment: In all solicitations, either competitive bidding or negotiation made by the consultant for work to be performed under a subcontract including procurements of materials and equipment, each potential subcontractor or supplier shall be notified by the consultant of the consultant’s obligation under this contract and the Regulations relative to nondiscrimination on the grounds of race, religion, color, gender, age, disability, national origin or minority populations and low income populations.

4) Information and Reports: The consultant will provide all information and reports required by the Regulations, or orders and instructions issued pursuant thereto, and the Secretary of the Transportation of the State of Kansas will be permitted access to the consultant’s books, records, accounts, other sources of information, and facilities as may be determined by the Secretary of Transportation of the State of Kansas to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of a consultant is in the exclusive possession of another who fails or refuses to furnish this information, the consultant shall so certify to the Secretary of Transportation of the State of Kansas and shall set forth what efforts it has made to obtain the information.

5) Employment: The consultant will not discriminate against any employee or applicant for employment because of race, religion, color, gender, age, disability, or natural origin.

6) Sanctions for Noncompliance: In the event of the consultant’s noncompliance with the nondiscrimination provisions of this contract, the Secretary of Transportation of the State of Kansas shall impose such contract sanctions as the Secretary of Transportation of the State of Kansas may determine to be appropriate, including, but not limited to,

(a) withholding of payments to the consultant under the contract until the contractor complies, and/or

(b) cancellation, termination or suspension of the contract, in whole or in part.

7) Disadvantaged Business Obligation

(a) Disadvantaged Business as defined in the Regulations shall have a level playing field to compete for contracts financed in whole or in part with federal funds under this contract.

(b) All necessary and reasonable steps shall be taken in accordance with the Regulations to ensure that Disadvantaged Businesses have equal opportunity to compete for and perform contracts. No person(s) shall be discriminated against on the basis of race, color, gender, or national origin in the award and performance of federally-assisted contracts.

(c) The contractor, sub recipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 C.F.R. Part 26 in the award and administration of Federally-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy, as the recipient deems appropriate.

8) Executive Order 12898

(a) To the extent permitted by existing law, and whenever practical and appropriate, all necessary and reasonable steps shall be taken in accordance with Executive Order 12898 to collect, maintain, and analyze information on the race, color, national origin and income level of persons affected by programs, policies and activities of the Secretary of Transportation of the State of Kansas and use such information in complying with this Order.

9) Incorporation of Provisions: The consultant will include the provisions of paragraphs (1) through (8) in every subcontract, including procurements of materials and equipment, unless exempt by the Regulations, order, or instructions issued pursuant thereto. The consultant will take such action with respect to any subcontract or procurement as the Secretary of Transportation of the State of Kansas may direct as a means of enforcing such provisions including sanctions for noncompliance: PROVIDED, however, that, in the event a consultant becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, the consultant may request the State to enter into such litigation to protect the interests of the State.

State of Kansas

Department of Administration

DA-146a (Rev. 1-01)

CONTRACTUAL PROVISIONS ATTACHMENT

Important: This form contains mandatory contract provisions and must be attached to or incorporated in all copies of any contractual agreement. If it is attached to the vendor/contractor's standard contract form, then that form must be altered to contain the following provision:

"The Provisions found in Contractual Provisions Attachment (Form DA-146a, Rev. 1-01), which is attached hereto, are hereby incorporated in this contract and made a part thereof."

The parties agree that the following provisions are hereby incorporated into the contract to which it is attached and made a part thereof, said contract being the _____ day of ____________________, 20_____.

1. Terms Herein Controlling Provisions: It is expressly agreed that the terms of each and every provision in this attachment shall prevail and control over the terms of any other conflicting provision in any other document relating to and a part of the contract in which this attachment is incorporated.

2. Agreement With Kansas Law: All contractual agreements shall be subject to, governed by, and construed according to the laws of the State of Kansas.

3. Termination Due To Lack Of Funding Appropriation: If, in the judgment of the Director of Accounts and Reports, Department of Administration, sufficient funds are not appropriated to continue the function performed in this agreement and for the payment of the charges hereunder, State may terminate this agreement at the end of its current fiscal year. State agrees to give written notice of termination to contractor at least 30 days prior to the end of its current fiscal year, and shall give such notice for a greater period prior to the end of such fiscal year as may be provided in this contract, except that such notice shall not be required prior to 90 days before the end of such fiscal year. Contractor shall have the right, at the end of such fiscal year, to take possession of any equipment provided State under the contract. State will pay to the contractor all regular contractual payments incurred through the end of such fiscal year, plus contractual charges incidental to the return of any such equipment. Upon termination of the agreement by State, title to any such equipment shall revert to contractor at the end of State's current fiscal year. The termination of the contract pursuant to this paragraph shall not cause any penalty to be charged to the agency or the contractor.

4. Disclaimer Of Liability: Neither the State of Kansas nor any agency thereof shall hold harmless or indemnify any contractor beyond that liability incurred under the Kansas Tort Claims Act (K.S.A. 75-6101 et seq.).

5. Anti-Discrimination Clause: The contractor agrees: (a) to comply with the Kansas Act Against Discrimination (K.S.A. 44-1001 et seq.) and the Kansas Age Discrimination in Employment Act (K.S.A. 44-1111 et seq.) and the applicable provisions of the Americans With Disabilities Act (42 U.S.C. 12101 et seq.) (ADA) and to not discriminate against any person because of race, religion, color, sex, disability, national origin or ancestry, or age in the admission or access to, or treatment or employment in, its programs or activities; (b) to include in all solicitations or advertisements for employees, the phrase "equal opportunity employer"; (c) to comply with the reporting requirements set out at K.S.A. 44-1031 and K.S.A. 44-1116; (d) to include those provisions in every subcontract or purchase order so that they are binding upon such subcontractor or vendor; (e) that a failure to comply with the reporting requirements of (c) above or if the contractor is found guilty of any violation of such acts by the Kansas Human Rights Commission, such violation shall constitute a breach of contract and the contract may be cancelled, terminated or suspended, in whole or in part, by the contracting state agency or the Kansas Department of Administration; (f) if it is determined that the contractor has violated applicable provisions of ADA, such violation shall constitute a breach of contract and the contract may be cancelled, terminated or suspended, in whole or in part, by the contracting state agency or the Kansas Department of Administration.

Parties to this contract understand that the provisions of this paragraph number 5 (with the exception of those provisions relating to the ADA) are not applicable to a contractor who employs fewer than four employees during the term of such contract or whose contracts with the contracting state agency cumulatively total $5,000 or less during the fiscal year of such agency.

6. Acceptance Of Contract: This contract shall not be considered accepted, approved or otherwise effective until the statutorily required approvals and certifications have been given.

7. Arbitration, Damages, Warranties: Notwithstanding any language to the contrary, no interpretation shall be allowed to find the State or any agency thereof has agreed to binding arbitration, or the payment of damages or penalties upon the occurrence of a contingency. Further, the State of Kansas shall not agree to pay attorney fees and late payment charges beyond those available under the Kansas Prompt Payment Act (K.S.A. 75-6403), and no provision will be given effect which attempts to exclude, modify, disclaim or otherwise attempt to limit implied warranties of merchantability and fitness for a particular purpose.

8. Representative's Authority To Contract: By signing this contract, the representative of the contractor thereby represents that such person is duly authorized by the contractor to execute this contract on behalf of the contractor and that the contractor agrees to be bound by the provisions thereof.

9. Responsibility For Taxes: The State of Kansas shall not be responsible for, nor indemnify a contractor for, any federal, state or local taxes which may be imposed or levied upon the subject matter of this contract.

10. Insurance: The State of Kansas shall not be required to purchase, any insurance against loss or damage to any personal property to which this contract relates, nor shall this contract require the State to establish a "self-insurance" fund to protect against any such loss or damage. Subject to the provisions of the Kansas Tort Claims Act (K.S.A. 75-6101 et seq.), the vendor or lessor shall bear the risk of any loss or damage to any personal property in which vendor or lessor holds title.

11. Information: No provision of this contract shall be construed as limiting the Legislative Division of Post Audit from having access to information pursuant to K.S.A. 46-1101 et seq.

12. The Eleventh Amendment: "The Eleventh Amendment is an inherent and incumbent protection with the State of Kansas and need not be reserved, but prudence requires the State to reiterate that nothing related to this contract shall be deemed a waiver of the Eleventh Amendment."