COST-SHARING AGREEMENT
THIS Cost-sharing Agreement is made this ____ day of _________, 2015, by and between the City of Lawrence, Kansas, a municipal corporation, and HERE Kansas, LLC, a Delaware limited liability company, or its assigns.
RECITALS
A. The City of Lawrence, Kansas, a municipal corporation ("City"), is the holder of those Rights of Way on which 11th Street and Mississippi Street are located in Lawrence, Douglas County, Kansas.
B. HERE Kansas, LLC, a Delaware limited liability company, or its assigns, ("HERE"), owns that real property, located in Lawrence, Douglas County, Kansas, and commonly known as 1101 and 1115 Indiana Street, which real property is adjacent to the 11th Street and Mississippi Street Rights of Way.
C. HERE wishes to redevelop the HERE Property, has submitted to the City a Development Plan, and has entered into a Development and License Agreement, dated December 9, 2014, with the City and Kansas University, setting forth the rights and obligations of the parties regarding the proposed redevelopment of the HERE Property.
D. With respect to the redevelopment of the HERE Property, the City and HERE have agreed to share certain infrastructure costs. This document memorializes the terms of that Cost-sharing Agreement.
TERMS
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. The Mississippi Street Project. The City and HERE agree to share all costs on an equal basis related to the reconstruction of the traveling lanes (approximately 31-feet wide) of Mississippi Street and the relocation of the sanitary sewer from the intersection of 11th Street and Mississippi Street south a distance of 300 feet. HERE shall be solely responsible for all costs of constructing parking spaces, curbs, and sidewalks. HERE shall also be solely responsible for the costs of all design and engineering plans related to the Mississippi Street Project.
2. The 11th Street Project. The City and HERE agree to share all costs on an equal basis related to the reconstruction of the traveling lanes from 11th Street from the intersection of 11th Street and Mississippi Street to the intersection of 11th Street and Indiana Street. The City and HERE also agree to share the costs of all design and engineering plans related to the 11th Street Project. The City shall be responsible for the costs of constructing curbing and sidewalks on the north side of the 11th Street Project. HERE shall be responsible for the costs of constructing curbing and sidewalks on the south side of the 11th Street Project.
3. Bids. The City will bid both the Mississippi Street Project and the 11th Street Project. HERE shall have the right to review the bids after the close of bids, but before the bids are awarded, and shall have input as the City assesses and determines the lowest responsible bidder on both projects.
4. HERE's Costs and Payment. By the close of bidding, HERE shall remit to the City its estimated share of the costs for the Mississippi Street Project and the 11th Street Project. If the cost estimates are high, the City will refund to HERE excess funds remitted to the City. If the cost estimates are low, then the City and HERE agree to settle up after the completion of the projects.
5. Completion of the Projects. The City anticipates that the Mississippi Street Project and the 11th Street Project will be completed no later than the end of July, 2016. However, if either or both of those projects are not completed in that time-frame, such fact shall not prevent HERE from procuring an occupancy permit, assuming of course that HERE's redevelopment passes final inspection and otherwise qualifies for the issuance of an occupancy permit under the City Code.
6. Inspections. The City shall provide all inspections of the Mississippi Street Project and 11th Street Project at no cost to HERE.
7. Term. This Cost-sharing Agreement shall expire after the Mississippi Street Project and 11th Street Project are completed and the parties have completed all cost sharing necessary for compliance with the terms of this agreement.
8. Authorization. Each of the persons executing this Cost-sharing Agreement, in behalf of their respective parties, represent and warrant that they have the authority to bind the party in behalf of whom they have executed this Cost-sharing Agreement, and that all acts requisite to the authorization to enter into and to execute this Cost-sharing Agreement have been taken and completed.
9. Binding Effect. This Cost-sharing Agreement shall, at all times, be binding upon the City and HERE, 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 HERE Property; provided, however, that the rights, duties, and obligations of the parties, 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. HERE may assign any rights or obligations under this Agreement to any third-party in its sole discretion and upon such assignment shall be fully released from any obligations hereunder that may arise after the effective date of any such assignment, unless any proposed assignee assumes this Cost-sharing Agreement, at which point HERE shall be irrevocably released for all obligations hereunder.
10. Kansas Cash Basis Law. This Agreement must comply with the applicable provisions of the Kansas Cash-Basis Law of 1933, codified as amended at K.S.A. 10-1101 et seq. The City is obligated only to make payments under this Agreement as may be lawfully made from funds budgeted and appropriated for the purposes set forth in this Agreement during the City’s current budget year. In the event that the City does not so budget and appropriate funds, the parties acknowledge and agree that they shall be relieved of all obligations under this Agreement without penalty. To the extent that the City does so budget and appropriate funds for the purposes set forth in this Agreement, the obligations of the parties shall remain as provided herein.
11. Indemnification. During the time that this Lease Agreement is in effect, the parties agree to indemnify, defend, save, and hold harmless the other party, including the other party's 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 the Mississippi Street Project or the 11th Street Project on account of any injury to persons or damage to property.
12. Independent Contractor. In no event, while performing under this Agreement, shall HERE be deemed to be acting as an employee of the City; rather, HERE shall be deemed to be an independent party. Nothing expressed herein or implied herein shall be construed as creating between HERE and the City the relationships of employer and employee, principal and agent, a partnership, or a joint venture.
13. Severability. If any section, sentence, clause, or phrase of this Cost-sharing 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.
14. Governing Law. This License Agreement shall be construed and enforced in accordance with and shall be governed by the laws of the State of Kansas.
15. Adoption of Recitals. The above-stated recitals are incorporated herein by reference, are hereby made a part of this Development and License Agreement, and shall be as effective as if repeated verbatim.
[SIGNATURES APPEAR ON THE FOLLOWING PAGES]
IN WITNESS WHEREOF, the City and HERE have executed this Cost-sharing Agreement with the full intent to bind themselves and their successors and assigns.
CITY:
CITY OF LAWRENCE, KANSAS, a municipal corporation
________________________________
DIANE STODDARD
Interim City Manager
ACKNOWLEDGMENT
THE STATE OF KANSAS )
) ss:
THE COUNTY OF DOUGLAS )
BE IT REMEMBERED, that on this ____ day of _________________, 2015, before me the undersigned, a notary public in and for the County and State aforesaid, came Diane Stoddard, as Interim 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:
HERE:
HERE KANSAS, LLC, a Delaware limited liability company
________________________________
JAMES W. HEFFERNAN
Manager
ACKNOWLEDGMENT
THE STATE OF ILLINOIS )
) ss:
THE COUNTY OF COOK )
BE IT REMEMBERED, that on this ____ day of _________________, 2014, before me the undersigned, a notary public in and for the County and State aforesaid, came James W. Heffernan, as Manager of HERE Kansas, LLC, a Delaware limited liability company, 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: