The Bath Pub LLC - Transferee AgreementTRANSFEREE AGREEMENT
THIS TRANSFEREE AGREEMENT (this "Agreement"), is made and entered into this
3rd day of August, 2020 (the "Effective Date") between and among the CITY OF SALINA,
KANSAS, a municipal corporation duly organized under the laws of the State of Kansas (the
SALINA 2020, INC., a Kansas corporation (the "Master Developer"), and THE BATH
PUB, LLC, a Kansas limited liability company ("Transferee") (collectively, the "Parties" and each
a "P").
RECITALS:
A. City and Master Developer have entered into that certain Development Agreement
dated as of January 23, 2017, as amended by the First Amendment to Development Agreement
dated as of January 12, 2018 and the Second Amendment to Development Agreement dated as of
November 5, 2018 (as amended, the "Development Agreement") concerning development of a
mixed-use project located generally within downtown Salina, Kansas as more specifically
described in Section 3.01 of the Development Agreement (the "Project').
B. Article IX of the Development Agreement provides for assignment by the City and
Master Developer of certain obligations, covenants, and agreements under the Development
Agreement to third parties. Accordingly, the City and the Master Developer desire to transfer
certain obligations, covenants, and agreements to Transferee in accordance with Article IX with
respect to the portion of the Project described in Exhibit A attached hereto (the "Transferee
Project'). A legal description and boundary map of the location of the Transferee Project is
attached as Exhibit B hereto, which shall hereinafter be referred to as the "Project Area".
C. The Parties desire to enter into this Agreement so that the Transferee shall
acknowledge, assume and agree to perform those obligations, covenants and agreements under the
Development Agreement (as well as additional terms described herein) as the same pertain to the
design, construction, completion and operation of the Transferee Project.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and in consideration of the mutual
covenants and agreements herein contained, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Incomoration of Recitals. The parties understand and agree that the Recitals set
forth above are hereby incorporated as though more fully set forth herein.
2. Definitions of Words and Terms. For all purposes of this Agreement, except as
otherwise provided or unless the context otherwise requires, the words and terms used in this
Agreement shall have the meanings set forth in Section 1.01 of the Development Agreement.
3. Term of Agreement and Master Developer's Rights. This Agreement shall
commence upon the Effective Date and shall terminate upon that date which is the earlier of (i)
the last day of the CID Collection Period, (ii) the date that the Transferee has been reimbursed for
all Eligible Transferee Costs by Public Finance Proceeds, or (iii) the date this Agreement is
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terminated pursuant to Section b or Section 14 herein (the "Term"). Notwithstanding the foregoing,
the Master Developer's rights, duties, and obligations under this Agreement shall expire on the
date of the Certificate of Full Completion for the Transferee Project.
4. General Acknowledgement and Assumption. Transferee hereby acknowledges,
assumes and agrees to perform each and every obligation, covenant and agreement under the
Development Agreement, except as modified below, but only to the extent that the same shall
pertain to the design, construction, completion and operation of the Transferee Project, each of
which is hereby incorporated as though more fully set forth herein. Transferee hereby understands
and agrees that the City or Master Developer may enforce the same directly against Transferee.
Notwithstanding the foregoing, the Transferee Project to be completed by the Transferee shall be
defined by Exhibit A to this Agreement, which shall control with regard to description of the
Transferee Project. Transferee acknowledges that it has received a copy of the Development
Agreement and any amendments thereto, and has reviewed the terms of same with counsel of its
own election.
5. Specific Acknowledgement and Assumption.
(a) Development Agreement Provisions Assumed by Transferee. In
connection with the Transferee Project, Transferee specifically acknowledges, assumes
and agrees to perform the following obligations, covenants and agreements, set forth in the
Development Agreement, as modified in certain instances below:
i. All of the terms and conditions in Article I (Definitions and Rules
of Construction).
ii. All of the representations and warranties of the Master Developer
made in Article II. In addition, Transferee makes the following representations:
a. No Material Change. There has been no material adverse
change in the business, financial position, prospects or results of
operations of the Transferee which could affect the Transferee's ability
to perform its obligations pursuant to the Agreement.
b. Comoliance with Laws. Transferee, to the best of its
knowledge, is in compliance with all valid laws, ordinances, orders,
decrees, decisions, rules, regulations and requirements of every duly
constituted governmental authority, commission and court applicable
to any of its affairs, business, operations as contemplated by this
Agreement and the Development Agreement.
C. Construction Permits. Except for Permitted Subsequent
Approvals, all governmental permits and licenses required by
applicable law to construct, occupy and operate the Transferee Project
have been issued and are in full force and effect or, if the present stage
of development does not allow such issuance, the Transferee
reasonably believes, after due inquiry of the appropriate governmental
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officials, that such permits and licenses will be issued in a timely
manner in order to permit the Transferee Project to be constructed.
iii. All of the terms and conditions set forth in Article III, Article IV,
Article VI, Article VII, Article VIII, Article IX, as the same relate to the Transferee
Project and rights, duties and obligations of the Third Party Developer of the
Transferee Project.
iv. All of the terms and conditions in Article X (General Provisions).
(b) Non -Exclusive. Each of the foregoing provisions is hereby incorporated by
reference and Transferee hereby understands and agrees that the City or Master Developer
may enforce the same against Transferee in connection with the Transferee Project.
Further, the Parties understand and agree that if and to the extent the various exhibits
attached to the Development Agreement are referenced in the obligations that are
acknowledged and assumed by the Transferee, such exhibits are hereby incorporated by
reference as though more fully set forth herein. Notwithstanding the foregoing, the
Transferee Project to be completed by the Transferee shall be defined by Exhibit A to this
Agreement, which shall control with regard to description of the Transferee Project. The
Transferee acknowledges that the provisions of the Development Agreement referenced in
this Section are not exclusive of the provisions of the Development Agreement assumed
by Transferee in connection with the Transferee Project, and that Transferee assumes all
provisions of the Development Agreement applicable to the Transferee and the Transferee
Project regardless of specific inclusion within this Section.
(c) Provisions Soecifically Not Assumed by Transferee. Notwithstanding
anything set forth herein which is seemingly to the contrary, the Parties hereby
acknowledge and agree that Transferee shall have no obligation to perform any of the
obligations under the following provisions, nor shall Transferee have any rights related to
the following provisions:
L All of the terms and conditions set forth in the Development
Agreement regarding development, financing, and operation of (or otherwise
applying to) any other Project Component other than the Transferee Project.
ii. All of the terms and conditions set forth in Article V (STAR Bond
Issuance).
6. Performance Milestones. The Parties hereby agree that construction of the
Transferee Project, subject to circumstances set forth in Section 8.09 of the Development
Agreement, shall be undertaken in accordance with the following schedule (the "Performance
Milestones"):
(a) Commencement of the Transferee Proiect. Transferee shall commence
construction of the Transferee Project by August 10, 2020. Commencement of the
Transferee Project shall mean the following:
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i. Transferee has provided an updated project schedule and final
project budget reasonably consistent with the preliminary project budget for the
development and construction of the Transferee Project (to be supplemented and
attached hereto as Exhibit C-1 and Exhibit C-2, respectively); and
ii. Transferee has obtained all necessary permits to commence
construction and has undertaken a continuous and uninterrupted program of
construction for the Transferee Project.
(b) Construction of the Transferee Proiect. Transferee shall construct the
Transferee Project in a good and workmanlike manner in accordance with the terms of this
Agreement and the Development Agreement. Upon reasonable advance notice, the
Transferee shall meet with the City to review and discuss the design and construction of
the Transferee Project in order to enable the City to monitor the status of construction and
to determine that the Transferee Project is being performed and completed in accordance
with this Agreement and the Development Agreement.
(c) Comoletion of the Transferee Proiect. The Transferee shall cause the
Transferee Project to be completed with due diligence. Transferee shall complete
construction of the Transferee Project by March 31, 2021. Completion of the Transferee
Project shall mean receipt of a Certificate of Completion as defined in Section 3.07 of the
Development Agreement.
(d) Failure to ComUIV with Performance Milestones.
i. Failure to Timely Commence or Complete the Proiect. In the event
that Transferee shall fail to meet any of the Performance Milestones set forth in this
Section, subject to Section 8.09 of the Development Agreement, then the City may
require Transferee to appear before the City to show cause as to why Transferee
failed to comply with the Performance Milestones. If Transferee cannot show cause
for the delay which is reasonably satisfactory to the City, the City may exercise any
or all of the following remedies:
a. Failure to Timely Commence. In the event Transferee does
not commence the Transferee Project within 90 days following the commencement
date identified in Section 6(a) herein, the City may provide written notice to
Transferee of its election to reduce the CID Allotment Principal described in
Section 7(b) herein by twenty-five percent (25%), unless otherwise agreed by the
City and Master Developer. In the event Transferee does not commence the
Transferee Project within 120 days following the commencement date identified in
Section 6(a) herein, the City may provide written notice to Transferee of its election
to cumulatively reduce the CID Allotment Principal described in Section 7(b)
herein by fifty percent (50%), unless otherwise agreed by the City and Master
Developer. In the event Transferee does not commence the Transferee Project
within 180 days following the commencement date identified in Section 6(a)
herein, the City may provide written notice to Transferee of its election to terminate
the rights, duties and obligations of Transferee under the Development Agreement
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and this Agreement unless otherwise agreed by the City and Master Developer.
The City shall provide written notice to the Master Developer and Transferee of its
intent to provide notice to the Transferee as provided herein a minimum of twenty
(20) business days prior to providing such notice to Transferee. Each of the
deadlines described in this Section shall be subject to extensions of time as set forth
in Section 8.09 of the Development Agreement. In the event the City provides
notice to the Transferee of a reduction to its CID Allotment Principal pursuant to
this Section, the City and Master Developer may elect, in their joint discretion, to
provide Transferee written notice of an extension of the completion deadline
contained in Section 6(c).
b. Failure to Timelv Complete. In the event Transferee does
not complete the Transferee Project within 90 days following the completion date
identified in Section 6(c) herein, the City may provide written notice to Transferee
of its election to reduce the CID Allotment Principal described in Section 7(b)
herein by twenty-five percent (25%), unless otherwise agreed by the City and
Master Developer. In the event Transferee does not complete the Transferee
Project within 120 days following the completion date identified in Section 6(c)
herein, the City may provide written notice to Transferee of its election to
cumulatively reduce the CID Allotment Principal described in Section 7(b) herein
by fifty percent (50%), unless otherwise agreed by the City and Master Developer.
In the event Transferee does not complete the Transferee Project within 180 days
following the completion date identified in Section 6(c) herein, the City may
provide written notice to Transferee of its election to terminate the rights, duties
and obligations of Transferee under the Development Agreement and this
Agreement, unless otherwise agreed by the City and Master Developer. The City
shall provide written notice to the Master Developer and Transferee of its intent to
provide notice to the Transferee as provided herein a minimum of twenty (20)
business days prior to providing such notice to Transferee. Each of the deadlines
described in this Section shall be subject to extensions of time as set forth in Section
8.09 of the Development Agreement.
ii. Rihhts and Remedies Cumulative. Except as otherwise expressly
stated in this Agreement or the Development Agreement, the rights and remedies
of the parties are cumulative, and the exercise by a party of one or more of such
rights or remedies under this Agreement or the Development Agreement (pursuant
to Section 14 herein) shall not preclude the exercise by it, at the same or different
times, of any other rights or remedies for the same default or any other default by
the other party.
iii. Delay Caused by Streetscane Construction. In no event shall the
City pursue any remedies contained in this Section for delays in commencement or
completion of the Transferee Project directly caused by construction of any
Streetscape and Public Infrastructure Improvements. In the event of delays in the
commencement or completion of the Transferee Project directly caused by
construction of the Streetscape and Public Infrastructure Improvements, the
obligations of the Transferee to commence or complete the Transferee Project shall
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be delayed an amount of time equivalent to the period of delay directly caused by
construction of the Streetscape and Public Infrastructure Improvements. In such
event the Transferee shall provide written documentation to the City that evidences
that the delay in such Streetscape and Public Infrastructure Improvements will or
has directly resulted in the delay of commencement or completion of the Transferee
Project.
7. Public Finance Proceeds.
(a) Conditions Precedent to Access to Public Finance Proceeds. Prior to access
to Public Finance Proceeds for purposes of partially financing the Transferee Project and
the right to submit a Certification of Expenditures for reimbursement for Eligible
Transferee Costs through Public Finance Proceeds pursuant to the provisions of the
Development Agreement, Transferee must have obtained a Certificate of Completion for
the Transferee Project as defined in Section 3.07 of the Development Agreement (the
"Public Finance Access Condition").
(b) Public Financing CaD. Following Transferee's satisfaction of the Public
Finance Access Condition, City and Master Developer will provide Transferee access to
CID Proceeds up to $75,000 from the New Retail Improvements CID Fund (the "CID
Allotment Principal") plus interest as described in Section 7(c) below. Such CID Proceeds
shall be used by Transferee solely for financing those costs of the Transferee Project
identified in the column labeled CID Uses in the Project Budget attached as Exhibit C-2
(collectively, the "Eligible Transferee Costs"). Such Eligible Transferee Costs shall in all
cases be reimbursable only subject to and in accordance with the terms of the Development
Agreement, this Agreement, the Bond Trust Indenture, and Kansas law.
(c) Interest on Certified Eligible Transferee Costs. In addition to
reimbursement to Transferee up to the CID Allotment Principal, interest at a rate of 5% per
annum will be reimbursed to Transferee from the New Retail Improvements CID Fund on
all Eligible Transferee Costs composing the amount of the CID Allotment Principal which
a) have been certified for reimbursement by the City and b) have yet to be reimbursed.
(d) Pav-Go Reimbursement. Transferee hereby acknowledges and agrees such
Public Finance Proceeds shall be available to Transferee on a pay-as-you-go basis in
accordance with the terms of the Development Agreement and that City and Master
Developer do not guarantee any specific amount of Public Finance Proceeds will actually
be available to Transferee for reimbursement of Eligible Transferee Costs. Further,
Transferee hereby acknowledges and agrees it shall not commence or join any cause of
action or other legal recourse under this Agreement, the Development Agreement, or in
law or equity against City or Master Developer (and acknowledges that it possesses no
such cause of action or legal recourse) in the event Transferee receives reimbursement for
Eligible Transferee Costs through Public Finance Proceeds in an amount less than
Transferee's CID Allotment Principal plus interest. All costs of developing the Transferee
Project, including Eligible Transferee Costs, in excess of the Public Finance Proceeds
actually received by Transferee shall be the sole responsibility of Transferee. In order to
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access such CID Proceeds, 'Transferee shall submit Certifications of Expenditures to the
City in a manner consistent with Article VI of the Development Agreement.
(e) Public Finance Proceeds Annual Allotment. Pursuant to the terms of that
certain Supplemental Agreement, Transferee's Public Finance Proceeds Annual Allotment
from the New Retail Improvements CID Fund is $5,732 of CID Proceeds, Such Public
Finance Proceeds Annual Allotment shall only be reimbursed to the Transferee in
accordance with the terms of this Agreement, the Development Agreement, and the
Supplemental Agreement.
(f) Public Finance Limitation.
i. In addition to the foregoing conditions applicable to the
disbursement of CID Proceeds the Transferee, the CID Proceeds available to
Transferee for reimbursement of Eligible Transferee Costs shall not exceed fifty
percent (50%) of the amount of the actual costs expended by Transferee to develop
the Transferee Project ("Total Proiect Costs"). The remainder of all Total Project
Costs, in an amount no less than fifty percent (50%) of such Total Project Costs,
shall be paid by Transferee through a combination of private debt and equity (the
"Private Contribution"). In other words, there shall not be more than fifty percent
(50%) of Total Project Costs paid with CID Proceeds (the "Public Finance
Limitation").
ii. The Certification of Expenditures submitted by Transferee shall
include evidence of payment for Total Project Costs paid with the Private
Contribution in an amount which is no less than fifty percent (50%) of the Total
Project Costs incurred at the time of such Certification of Expenditures in order to
satisfy the Public Finance Limitation. In other words, the cumulative amount of
Total Project Costs eligible for reimbursement through CID Proceeds shall not
exceed fifty percent (501/o) of the cumulative amount of Total Project Costs in
included in the Certification of Expenditures.
8. Insurance. Each Third Party Developer shall keep the Transferee Project
continuously insured against such risks and in such amounts, with such deductible provisions as
are customary in connection with the operation of facilities of the type and size comparable to the
Transferee Project.
9. Indemnification of Citv and Master Developer. Transferee agrees to indemnify and
hold the City and Master Developer, and the employees, agents, officers, officials and independent
contractors and consultants of the City and the Master Developer (collectively, the "Indemnified
Parties') harmless from and against any and all suits, claims, costs of defense, damages, injuries,
liabilities, judgments, costs and/or expenses, including court costs and reasonable attorneys' fees,
("Losses") resulting from, arising out of, or in any way connected with:
(a) Transferee's actions and undertaking in implementation of the Transferee
Project, the Development Agreement, this Agreement, and the CID Petition;
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(b) the negligence or willful misconduct of Transferee, its employees, agents or
independent contractors, consultants, affiliates, and any other party related to Transferee
or under its control, in connection with the management, design, development,
redevelopment and construction of the Transferee Project; and
(c) any delay or expense resulting from any litigation filed against Transferee
by any member or shareholder of Transferee, any prospective investor, prospective partner
or joint venture partner, lender, co -proposer, architect, contractor, consultant or other
vendor.
This Section shall not apply to Losses to the extent that such Losses arise from the willful
misconduct or gross negligence of the City or Master Developer or the officers, employees or
agents of City or Master Developer. This Section includes, but is not limited to, any repair,
cleanup, remediation, detoxification, or preparation and implementation of any removal,
remediation, response, closure or other plan (regardless of whether undertaken due to
governmental action) concerning any hazardous substance or hazardous wastes including
petroleum and its fractions as defined in (i) the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"; 42 U.S.C. Section 9601, et seq.), (ii) the Resource
Conservation and Recovery Act ("RCRA"; 42 U.S.C. Section 6901 et seq.) and (iii) Article 34,
Chapter 65, K.S.A. and all amendments thereto, at any place where such Transferee owns or has
control of real property pursuant to any of Transferee's activities under the Development
Agreement and this Agreement. The foregoing indemnity is intended to operate as an agreement
pursuant to Section 107(e) of CERCLA to assure, protect, hold harmless and indemnify City and
Master Developer from liability.
10. Pavment of Taxes and Liens. Transferee hereby agrees as follows:
(a) Pavment of Property Taxes. During the Term of this Agreement, Transferee
and its respective Affiliates shall pay when due all real estate taxes and assessments on the
property it owns within the Districts. However, the obligation to pay real estate taxes and
assessments on such property shall not be a personal obligation of the Transferee and its
respective Affiliates but is subject to the same provisions related to enforcement and
collection of real estate taxes and assessments under laws of the State. In the event that the
Transferee or its Affiliates shall fail to pay all such applicable real estate taxes and
assessments after any notice and cure periods set forth in Section 8.02 of the Development
Agreement, the Transferee understands and agrees that, among other things, the City may
(i) terminate financing of the Transferee Project through Public Finance Proceeds, (ii)
suspend all reimbursements of Eligible Transferee Costs through Public Finance Proceeds
during any time that such real estate taxes and assessments on the property owned by
Transferee and its respective affiliates within the Districts remain unpaid or (iii) exercise
any other remedies under this Agreement and/or the Development Agreement.
Notwithstanding the foregoing, nothing contained in this Agreement shall prohibit the
Transferee and its respective affiliates from contesting the assessed value of the properties,
improvements or the taxes thereon in good faith by appropriate proceedings; provided
however that each such party shall pay any and all amounts that are contested under protest
while any such proceedings are pending. The Transferee and its respective affiliates shall
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promptly notify the City in writing of a protest of real estate taxes or valuation of property
owned by the Transferee or its respective affiliates within the Districts.
(b) Liens. Transferee and its respective Affiliates further agree that no
mechanics' or other Iiens shall be established or remain against the Transferee Project or
the property within the Districts, or the funds in connection with any of the Transferee
Project, for labor or materials procured by Transferee and furnished in connection with any
acquisition, construction, additions, modifications, improvements, repairs, renewals or
replacements so made. However, Transferee shall not be in default if mechanics' or other
liens are filed or established and the Transferee and its respective Affiliates contests in
good faith said mechanics' liens and in such event may permit the items so contested to
remain undischarged and unsatisfied during the period of such contest and any appeal
therefrom.
(c) Sales Tax Collection. If Transferee is engaged in the business of selling
tangible personal property at retail or rendering or furnishing services taxable pursuant to
the provisions of the Kansas retailers' sales tax act and amendments thereto (K.S.A. 79-
3601 et seq.) within any of the Districts, Transferee shall collect, and make returns of, all
taxes levied under the Kansas retailers' sales tax act and any CID Sales Tax imposed within
the District in which Transferee is engaged in such business, all in the manner and at the
times prescribed by applicable law. The Transferee shall be obligated to provide the City,
along with its submission to the Kansas Department of Revenue, copies of the monthly
sales tax returns for Transferee's businesses within the Districts, if any, for which
Transferee is obligated to submit sales tax returns to the Kansas Department of Revenue.
To the extent it may legally do so, information obtained pursuant to this Section shall be
kept confidential by the City in accordance with Applicable Law and Requirements,
including but not limited to K.S.A. 79-3657.
11. Daman, Destruction or Condemnation.
(a) In the event of damage to or destruction of any portion of the Transferee
Project (other than the public roads, public right of way and public lands within the
Transferee Project) resulting from fire or other casualty during the Term (a "Casualty"), or
in the event any portion of the Project Area is condemned or taken for any public or quasi -
public use or title thereto is found to be deficient during the Term, the net proceeds of any
insurance relating to such damage or destruction, the net proceeds of such condemnation
or taking or the net proceeds of any realization on title insurance shall be paid into, and
used in accordance with a construction escrow agreement reasonably satisfactory to the
City, Transferee, and Transferee's construction or permanent lender ("Casualty Escrow").
(b) If, at any time during the Term, the Transferee Project or any part thereof
(other than the public roads, public right of way and public lands within the Project) shall
be damaged or destroyed by a Casualty (the "Damaged Facilities"), Transferee, at its sole
cost and expense, shall commence and thereafter proceed as promptly as possible to repair,
restore and replace the Damaged Facilities as nearly as possible to their condition
immediately prior to the Casualty and shall be entitled to draw upon the Casualty Escrow
for payment of said costs.
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(c) If at any time during the Term, title to the whole or substantially all of the
portion of the Project Area owned by Transferee (or its Affiliate) shall be taken in
condemnation proceedings or by right of eminent domain, Transferee, at its sole discretion,
may terminate this Agreement as of the date of such taking. For purposes of this Section,
"substantially all of the Project Area" shall be deemed to have been taken if the City and
Transferee, each acting reasonably and in good faith, determine that the untaken portion of
the Project Area cannot be practically and economically used by Transferee for the
purposes and at the times contemplated by this Agreement.
(d) In the event of condemnation of less than the whole or substantially all of
the portion of the Project Area owned by the Transferee (or its Affiliate) during the Term,
Transferee, at its sole cost and expense, shall commence and thereafter proceed as promptly
as possible to repair, restore and replace the remaining part of the Transferee Project, as
nearly as possible, to its former condition, and shall be entitled to draw upon the Casualty
Escrow for payment of said costs.
(e) Nothing in this Section will require the Transferee to expend funds in excess
of the Casualty Escrow or to perform any obligation in addition to those obligations
contained in the Development Agreement or in this Agreement.
12. Rights of Access and InMection.
(a) Representatives of the City shall have the right of access to the Transferee
Project, without charges or fees, at normal construction hours during the period of
construction, for the purpose of ensuring compliance with this Agreement, including, but
not limited to, the inspection of the work being performed in constructing, renovating,
improving, equipping, repairing and installing the Transferee Project, so long as they
comply with all safety rules. Except in case of emergency, prior to any such access, such
representatives of the City will check in with the on-site manager. Such representatives of
the City shall carry proper identification, shall insure their own safety, assuming the risk
of injury, and shall not interfere with the construction activity.
(b) The Transferee shall maintain complete, accurate, and clearly identifiable
records with respect to the Transferee Project, Eligible Transferee Costs and any other
documents created pursuant to, or arising under, this Agreement, including, but not limited
to, as applicable: all general contractor's sworn statements, general contracts, subcontracts,
material purchase orders, waivers of lien, and paid receipts and invoices (collectively, the
"Records"). The Records shall be maintained during the term of this Agreement, and for
a period of two (2) years thereafter (the "Retention Period"); provided, however, that if any
litigation, claim or audit is commenced prior to the expiration of the Retention Period, then
the Retention Period shall be extended until all litigation, claims or audit findings have
been completely terminated or resolved, without right of further appeal.
(c) During the Retention Period, Transferee further agrees that the City, with
reasonable advance notice and during normal business hours, shall have the right and
authority to review, inspect, audit, and copy, from time to time, all of Transferee's Records
as pertinent to the purposes of, or to ensure compliance with, this Agreement. In addition,
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Transferee agrees to provide the City with copies of such Records, upon request. The City
shall periodically report the findings of such inspections to Master Developer in writing;
provided, however, that nothing contained herein shall create an affirmative obligation of
the Master Developer to perform any inspections of the Transferee Project or evaluate the
adequacy of the construction of the Transferee Project.
13. Assignment and Transfer of this Agreement. Assignment and transfer of any or all
rights, duties or obligations under this Agreement shall be governed by Section 9.03 of the
Development Agreement, which is expressly incorporated herein.
14. Defaults and Remedies. Events of Default and remedies therefore shall be
governed by Article VIII of the Development Agreement, which is expressly incorporated herein.
15. Release of Master Developer. To the extent that Transferee has assumed any
obligations, terms or conditions of the Master Developer in connection with the Transferee Project
under the Development Agreement pursuant to execution of this Agreement, the City hereby
specifically agrees to release the Master Developer from such obligations, terms and conditions.
16. Notice. Notice to City and Master Developer shall be as described in the
Development Agreement. Notice to Transferee shall be made to the following:
To the Transferee:
Kelli and Emily Webb
The Bath Pub, LLC
109 S Santa Fe Avenue
Salina, KS 67401
17. Time of the Essence. Time is of the essence of this Agreement. The Parties will
make every reasonable effort to expedite the subject matters hereof and acknowledge that the
successful performance of this Agreement requires their continued cooperation.
18. Reauired Disclosures. Each Party shall immediately notify the other Party of the
occurrence of any material event which would cause any of the information furnished to other
Party (by such furnishing Party) in connection with the matters covered in this Agreement to
contain any untrue statement of any material fact or to omit to state any material fact required to
be stated therein or necessary to make any statement made therein, in the light of the circumstances
under which it was made, not misleading.
19. Non -Binding Mediation. If a dispute or controversy arises between the City,
Master Developer, or Transferee under this Agreement, then any Party shall be entitled to request
non-binding mediation, and the City, Master Developer, and Transferee agree to participate, in
good faith, in any such mediation requested by any other Party. Any request for mediation
pursuant to this Section shall be made in writing and delivered to the other Parties within thirty
(30) days of the action or decision giving rise to the dispute or controversy. The mediation shall
occur in Salina, Kansas, and the cost of any such mediation shall be divided equally between the
Parties.
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20. Tax Implications. The Transferee acknowledges and represents that (1) neither the
City not Master Developer, nor any of their officials, employees, consultants, attorneys or other
agents has provided to the Transferee any advice regarding the federal or state income tax
implications or consequences of this Agreement and the transactions contemplated hereby, and (2)
the Transferee is relying solely upon its own tax advisors in this regard.
21. Survival. Notwithstanding the termination of this Agreement, Transferee's
obligations of insurance and indemnification set out herein shall survive the termination of this
Agreement to the extent that any incident giving rise to a claim, suit, judgment or demand occurred
during Term.
22. Kansas Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Kansas.
23. Counterparts. This Agreement may be executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the same Agreement.
24. Recordation of Agreement. The Parties agree to execute and deliver a
memorandum of this Agreement in proper form for recording in the real property records of Saline
County, Kansas, upon the request of a Party.
25. Cash Basis and Budget Laws. The Parties acknowledge and agree that the ability
of the City to enter into and perform certain financial obligations pursuant to this Agreement are
subject to the K.S.A. 10-1101 et seq. and K.S.A. 79-2935 et seq.
26. Electronic Storage. The Parties agree that the transactions described herein may be
conducted and related documents may be received, sent or stored by electronic means. Copies,
telecopies, facsimiles, electronic files, and other reproductions of original executed documents
shall be deemed to be authentic and valid counterparts of such original documents for all purposes,
including the filing of any claim, action or suit in the appropriate court of law.
27. Master Developer Recusal. Transferee acknowledges that Section 3.10 of the
Development Agreement prohibits the Master Developer from making or participating in the
making of any Transferee Agreement in which the Master Developer or any of its directors,
officers, or shareholders has a substantial interest (as defined in K.S.A. 75-4301a) in the Third
Party Developer entering into such Transferee Agreement. In such event, the City and the Third
Parry Developer of such Project Component shall be the only parties which enter into such
Transferee Agreement. Any Transferee Agreement the Master Developer makes or participates in
making in violation of Section 3.10 of the Development Agreement may be deemed void in part
or whole at the reasonable discretion of the City.
[Remainder of page intentionally left blank. Signature pages immediately follow.]
12
74229134.1
IN WITNESS WHEREOF, the City, Master Developer and Transferee have duly executed
this Agreement pursuant to all requisite authorizations as of the date first above written.
CITY OF SALINA, KANSAS
Michaell. Hoppock, M
[SEAL]
ATTEST:
i( IY'K
Shandi Wicks, CMC, City Clerk
APPROVE AST ORM:
'/- % -
Legal unsel
STATE OF KANSAS }
) ss.
COUNTY OF SALIVA )
On this —Z� day of jepn ! , 2020, Michael L. Hoppock, personally
known to me and after first being sworn did state that he is the Mayor of the City of Salina, State
of Kansas, and that the sea] affixed to the foregoing instrument is the official Seal of the City of
Salina, and that said instnnnent was signed and sealed on behalf of the City, and that the matters
set forth herein are true and correct to the best of his and the City's knowledge, information and
belief, and acknowledge that he executed the same on behalf of the City as its free act and deed.
Notary Public
My Commission Expires: Ii— L9-2-3
74229134.1
Notary public - State of Kansas
DEBORAH A. 99LE
Is& MyApp1. EV. - ... Z3
IN W 1TNESS WHEREOF, the City, Master Developer and Transferee have duly executed
this Agreement pursuant to all requisite authorizations as of the date first above written.
MASTER DEVELOPER:
SALINA2020, INC.,
a Kansas corporation
By�--�...�C.ZZ—,
Trace Walker, S ' n e- P- 4 ".t,--,4
STATE OF KANSAS }
) ss.
COUNTY OF 'Sat�'r✓ )
On this &'L` day of I&Vncier- , 2020, before me personally appeared Trace
Walker, to me personally known, who being by me duly sworn did say that he is the
c� of Salina202O, Inc., and that said instrument was signed and delivered on behalf
of said corporation and acknowledged to me that he executed the same as the free act and deed of
said corporation.
In Testimony Whereof, I have hereunto set my hand and affixed my official seal the day
and year first above written.
My Commission Expires:
,5l�s laa
74224134.1
�r c
N h1 RY PU IC
TINA BENDA
way Public • &a d Kom
[+APPL ExPlre$54'agci
[SEALI
IN WITNESS WHEREOF, the City, Master Developer and Transferee have duly executed this
Agreement pursuant to all requisite authorizations as of the date first above written.
TRAINSFEREE:
Q_ C__ C�
Printed Name.� kL C_ i Alt
Title;
Date:
STATE OF )
)SS.
COUNTY OF�v� )
a�dspersonally
day of LDLnA4V'�V2020, before me personally appeared
known, who being by me duly sworn did say that he/she is the
�� r►r' o a V •-,,
and that said instrument was signed and delivered on behalf of said
and acknowledged to me that he/she executed the same as the
free act and deed of said �'--A
In Testimony Whereof, I have hereunto set my hand and affixed my official seal the day
and year first above written_ "-�j
Notary Publin - State of Kansas Notary Publl
DEBORAH A (OLE (�
My�Appt-Exp. l —'Z'3 Printed Name:..
My Commission Expires:
7422,.9334.3
EXHIBIT A TO TRANSFEREE AGREEMENT
Descriotion of Transferee Pra�ect
[ATTACH NARRATIVE DESCRIPTION. SITE PLAN. RENDERINGS AND
PRELIMINARY PROJECT BUDGETI
74224134.1
Exhibit A Narrative
Bath Pub
Business Description
The Bath Pub, located at 109 S Santa Fe, will be a fun new addition
to downtown Salina featuring bath, body, pet, and some home products.
Products are small batch and mixed on site using all -natural plant -based
products, essential perfume oils, and essential oils. All products are
customizable for the client. Each client will choose their product, choose a
scent, if desired, from the 150 scents on our scent bar, or they can combine
up to three scents to create their own unique blend, then choose from
several color options available to tint their product.
www.thebatht)ubks.com
Building Improvements
The exterior building improvements will include new black metal windows
upstairs as well as new store front windows. The exterior front will be
repaired and painted white with black accents on the windows and trim.
Interior upgrades are also being completed. We have added a new ADA
bathroom, as well as storage room and utility room. As a result, all
plumbing has been updated.
All new lighting is being installed in the store, store windows and front door.
Much of the electrical has also been updated.
The interior exposed brick walls are being restored and sealed for
preservation. In addition, the original wood floors and store windows have
been sanded and refinished.
A small event space has also been created with the potential to host small
parties for various occasions.
Exhibit A Floor Plan and Renderings
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EXHIBIT B TO TRANSFEREE AGREEMENT
Legal Description and Boundary Man
74229134.1
Exhibit 8 Legal Description
OrigInal Town of Sallow, 533, T14, k3, 3000 Square Feet, NJ2 t7 113 Santa Fe Ave,
IV
Bath Pub
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108 5 Sema Fe "— " _ ' 1 1 P9 5 Sarna Fe Ave
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EXHIBIT C-1 TO TRANSFEREE AGREEMENT
Critical Path Schedule
[SEE ATTACHEDI
74229134.1
Exhibit C-1 Project Schedule
Construction at 109 S Santa Fe began in March of 2020 with an anticipated
completion date of September 2020. Our original opening date was
planned for October 2020.
Due to the COVID-19 Virus and subsequent stay at home orders issued in
Mid -March, construction slowed down a bit as supply chains became
disrupted, and some materials were hard to get.
Additional delays have occurred in the product supply chain for store
inventory.
As a result of these issues, our construction completion date has been
pushed back to late September of 2020 with an anticipated opening date
by November 2020.
EXHIBIT C-2 TO TRANSFEREE AGREEMENT
Proiect Budeet
[SEE ATTACHED1
74229134.1
Exhibit C-2 Project Budget
1109 S Santa Fe Retai! SQAce
Purchase of Building:
$225,000.00
Consulting Fee (Business Purchase):
$50,000.00
Architectual Services:
$6,000.00
Training (On -Site):
$1,500.00
Accounting Fees;
$525.00
Legal Fees:
$166.00
Bank Fees:
$644.00
Demo:
$2,100.00
Floor Slab Repair:
$600.00
Concrete Brick Repair:
$500.00
Misc Steel:
$400.00
Misc Carpentry:
$400.00
Wood Base:
$582.00
Hardwood Floor Refinish:
$2,600.00
Cement Floor Sealants:
$1,000.00
Brick Wall Sealants:
$1,000.00
Hollow Metal Doors, Frames & Hardware:
$4,000.00
Storefront Windows:
$15,825.00
Second Floor Windows on Front:
$5,499.00
Metal Stud Partitions:
$4,480.00
Restroom tile on Walls:
$2,048.00
Drywall & Finish:
$7,360.00
Hallow Metal Door Painting:
$800.00
Painting:
$3,600.00
Floor Tile:
$225.00
Ceiling Repair/Paint: First Floor
$2,674.50
Metal Ceiling tile:
$558.00
Mirrors:
$150.00
Grab Bars:
$400.00
Toilet Paper / Paper Towel Disp:
$75.00
Millwork:
$9,625.00
Plumbing Fixtures:
$12,000.00
HVAC:
$1,000.00
Lighting and Controls:
$12,000.00
Furniture and Fixtures:
$4,000.00
Technology & Security:
$5,000.00
Inventory:
$20,000.00
Business Supplies & Equipment:
$5,000.00
Containers & Packaging:
$5,000.00
Contingency:
$5,000.00
SUB -TOTAL: $419,336.50