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05-01-2020 Transferee Agreement' ~. TRANSFEREE AGREEMENT THIS TRANSFEREE AGREEMENT (this "Agreement"), is made and entered into this _j__ day of May, 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 "City"), SALINA 2020, INC., a Kansas corporation (the "Master Developer") and SALINA DOWNTOWN, INC., a Kansas not for profit corporation {"Transferee") (collectively, the "Parties" and each a "Party"). 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 I 2, 2018 and the Second Amendment to Development Agreement dated as of November 5, 20 I 8 (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 Downtown Maintenance, Security and Programming Services to be performed in the Downtown CID District (referred to herein as the "Downtown Services"). 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 Downtown Services. 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 suffieiency of which are hereby acknowledged, the parties hereby agree as follows : 1. Incorporation 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. Additional capitalized words and terms appearing in this Agreement not otherwise defined herein shall have the following meanings: 73733089.2 •, "Operating Year" means each twelve (12) month period during the Term, commencing on January 1 and ending on December 31 , except that the first (1 st) Operating Year shall commence on the date set forth in the initial Statement of Work approved by the Parties, subject to potential amendment by the Parties pursuant to Section 7(c), and shall end on December 31 , 2021 . "Statement of Work" means a detailed plan and scope of services relating to Transferee's performance of the Downtown Services for each Operating Year, along with a corresponding budget for such Downtown Services, which must be prepared by Transferee and approved by the City and Master Developer in accordance with the terms and conditions of this 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) December 31 of any Operating Year if the Parties have not entered into a Statement of Work for the immediately following Operating Year, or (iii) the date this Agreement is terminated pursuant to Section 13 herein (the "Term"). 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 Downtown Services, 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. 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 Downtown Services, 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: 73733089.2 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. Compliance with Laws. Transferee, to the best of its knowledge, is in compliance with all valid laws, ordinances, orders, 2 .. 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. 111. All of the terms and conditions set forth in Article III, Article IV, Article VI, Article VII, Article Vlll, Article IX, as the same relate to the Downtown Services and rights, duties and obligations of the Third Party Developer of the Downtown Services. 1v. 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 Downtown Services. 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 Downtown Services to be completed by the Transferee shall be defined by this Agreement and any Statement of Work approved pursuant to this Agreement, which shall control with regard to description of the Downtown Services. The Transferee acknowledges that the provisions of the Development Agreement referenced in Section 5(a) are not exclusive of the provisions of the Development Agreement assumed by Transferee in connection with the Downtown Services, and that Transferee assumes all provisions of the Development Agreement applicable to the Transferee and the Downtown Services regardless of specific inclusion within this Section. (c) Provisions Specifically 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: i. 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 Downtown Services. II. All of the terms and conditions set forth in Article V (ST AR Bond Issuance). 6. Performance of the Downtown Services. During each Operating Year, Transferee shall diligently and continuously perform the Downtown Services in accordance with the Approved Statement of Work for such Operating Year, and Transferee shall adhere to the budget within such Approved Statement of Work. Transferee shall furnish all labor, services, supplies, materials, and equipment required to complete the Downtown Services, and shall provide sufficient organization, personnel, and management to perform those services in an 3 73733089.2 .. expeditious, economical, and professional manner, subject to the terms and conditions of Section 7(g) of this Agreement pertaining to the availability of sufficient CID Proceeds. Without limiting the scope of the Downtown Services described in this Agreement or the Development Agreement, the responsibilities for maintaining property and infrastructure, providing promotional services or materials, providing security services, and providing other services within the Downtown CID District shall be allocated between the City and Transferee as set forth in Exhibit A. l attached hereto. Each Approved Statement of Work shall, among other things, address Transferee's detailed plan and scope of services related to those responsibilities allocated to, or shared by, Transferee, as show in Exhibit A. l . The Parties acknowledge and agree that Exhibit A. I shall be reviewed on an annual basis in connection with the preparation and review of each proposed Statement of Work, and Exhibit A. l may be amended, from time to time, by mutual written agreement of the Parties. 7. Public Finance Proceeds; Statements of Work. (a) Allotment. Source of Funds for Downtown Services; Master Developer CID i. The Parties acknowledge and agree that Transferee shall be compensated for performance of the Downtown Services solely from Downtown CID Proceeds deposited into the Downtown Maintenance, Security and Programming CID Fund, in an amount not to exceed the Public Financing Cap for the applicable Operating Year. Notwithstanding the Effective Date of this Agreement, the parties acknowledge and agree that this Agreement shall apply to, and Transferee shall be eligible to access, Downtown CID Proceeds collected prior to the Effective Date, subject to the terms and conditions of the Development Agreement and this Agreement. 11 . Before any Downtown CID Proceeds are deposited into the Downtown Maintenance, Security and Programming CID Fund and made available to Transferee pursuant to the terms and conditions of this Agreement, the first $200,000 of Downtown CID Proceeds disbursed from the Downtown CID Sales Tax Fund shall be made available for use in funding costs for professional fees incurred by Master Developer in connection with the Project (the "Master Developer CID Allotment") in accordance with the provisions of the Development Agreement. Following reimbursement to the Master Developer for the full Master Developer CID Allotment, Downtown CID Proceeds shall be deposited into the Downtown Maintenance, Security and Programming CID Fund, in accordance with the provisions of the Development Agreement, and made available to Transferee pursuant to the terms and conditions of this Agreement. (b) Conditions Precedent to Access to Public Finance Proceeds. Prior to Transferee's access to Downtown CID Proceeds for purposes of paying or reimbursing Transferee for the performance of Downtown Services in any Operating Year, the Parties must have entered into a Statement of Work for the applicable Operating Year, m accordance with the terms of this Section (the "Public Finance Access Condition"). 4 73733089.2 (c) First Operating Year -2021. Attached hereto as Exhibit A.2 is the mutually agreed Statement of Work for the first Operating Year, commencing on January 1, 2021 , which shall be deemed an "Approved Statement of Work" for the first Operating Year. The parties acknowledge and agree that, for purposes of maximizing the amount of Downtown CID Proceeds available to reimburse Transferee for performing the Downtown Services during the first Operating Year, it may be necessary to amend the commencement date for performance, or the corresponding budget, for some or all of the Downtown Services described in the initial Statement of Work attached hereto as Exhibit A.2. Accordingly, upon request by any Party, the Parties shall confer in good faith regarding appropriate amendments, if any, to the commencement date and corresponding budget for Transferee's performance of Downtown Services in the initial Operating Year. (d) Submittal of Proposed Statement of Work. No later than May 1 of each Operating Year (beginning on May 1, 2021), Transferee shall prepare and submit to the City and Master Developer a proposed Statement of Work for the next immediate Operating Year, along with copies of: (1) Transferee's most recent accountant-reviewed financial statements, or such other form(s) presenting Transferee's most recent financial condition as may be mutually agreed upon by Transferee, the City Representative and the Master Developer; and (2) a detailed performance report covering the then-current Operating Year and the immediately preceding full Operating Year, including a detailed statement of revenues and expenditures (budget to actual) for the previous Operating Year and the current Operating Year to date. ( e) Review of Proposed Statement of Work. Each proposed Statement of Work shall be subject to the review, revision, and approval of the City and Master Developer in their reasonable discretion. In order for the City and Master Developer to fully evaluate and analyze the proposed Statement of Work, Transferee agrees to provide to the City and Master Developer such additional information relating to the Downtown Services or Transferee's financial condition as may be requested by the City or Master Developer from time to time. Funding under this Agreement must be accounted for separately from any other City funding received by Transferee. No later than August 1 of such Operating Year, the City and Master Developer shall affirmatively elect or decline to elect to approve the proposed Statement of Work for the next immediate Operating Year. (f) Approved Statement of Work. Each Statement of Work adopted through such procedure is referred to herein as the "Approved Statement of Work." Each Approved Statement of Work shall be executed by the Parties and attached and incorporated as part of Exhibit A.2 hereto and shall become a part of this Agreement with respect to the applicable Operating Year as if fully set forth herein. (g) Public Financing Cap; Surplus Funds. Following Transferee's satisfaction of the Public Finance Access Condition, but not earlier than January 10 of the applicable Operating Year, the City will provide Transferee access to CID Proceeds from the Downtown Maintenance, Security and Programming CID Fund in the amount set forth in the Approved Statement of Work but only to the extent such funds are on deposit within the Downtown Maintenance, Security and Programming CID Fund, which CID Proceeds 5 73733089.2 shall be used by Transferee solely for payment or reimbursement of those costs of the Downtown Services as identified in the budget attached to the Approved Statement of Work and in amounts actually incurred ("Eligible Transferee Costs"), in all cases subject to and in accordance with the terms of the Development Agreement, this Agreement, the Bond Trust Indenture, and Kansas law (the "Public Financing Cap"). Without limiting the foregoing, Transferee acknowledges and agrees that, during any Operating Year, if the sum of the Downtown CID Proceeds on deposit in or deposited into the Downtown Maintenance, Security and Programming CID Fund exceeds Transferee's Public Financing Cap for such Operating Year, Transferee shall have no entitlement to such excess funds, and such excess funds shall be maintained on deposit in the Downtown Maintenance, Security and Programming CID Fund, subject to the potential for future allocation and distribution in subsequent Operating Years in accordance with an Approved Statement of Work. (h) Pay-As-You-Go Reimbursement. Transferee hereby acknowledges and agrees such Downtown CID 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 Downtown CID Proceeds will actually be available to Transferee for reimbursement of Eligible Transferee Costs, excepting only Downtown CID Proceeds actually received by the City and deposited into the Downtown Maintenance, Security and Programming CID Fund. 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 Jaw or equity against City or Master Developer (and acknowledges that it possesses no such cause of action or legal recourse) which relates to Transferee's receipt of payment or reimbursement for Eligible Transferee Costs through Downtown CJD Proceeds in an amount less than Transferee's Public Financing Cap. (i) Funding Deficiencies. All costs of performing the Downtown Services, including Eligible Transferee Costs, in excess of the Downtown CID Proceeds actually received by Transferee shall be the sole responsibility of Transferee. Notwithstanding the foregoing, if, during any Operating Year, the amount of Downtown CID Proceeds paid to Transferee and the amount of any Downtown CID Proceeds available to be paid to Transferee from the Downtown Maintenance, Security, and Programming CID Fund are insufficient to pay for Eligible Transferee Costs in accordance with the terms of an Approved Statement of Work, Transferee shall have no liability to the City or Master Developer in the event Transferee is unable to perform the Downtown Services under any Approved Statement of Work due to the unavailability of sufficient CID Proceeds; provided, however, that Transferee shall notify the City and Master Developer in writing as promptly as reasonably possible if at any time it anticipates a cash flow shortfall preventing it from incurring or paying Eligible Transferee Costs hereunder. If Transferee notifies the City and Master Developer of a cash flow shortfall due to the unavailability of sufficient CID Proceeds to pay for Eligible Transferee Costs in accordance with the terms of an Approved Statement of Work, the Parties shall confer in good faith and shall develop and implement a plan to modify the Statement of Work for such Operating Year to address the funding deficiency. 6 73733089.2 8. Insurance. (a) Types and Amount of Coverage. Transferee agrees to obtain insurance coverage as specified in Exhibit B, attached hereto, and shall not make any material modification or change from these specifications without the prior approval of the City. (b) Rating. All insurance policies shall be issued by insurance companies rated no less than A-VII in the most recent "Bests" insurance guide, and admitted in the State of Kansas. Except as otherwise specified in Exhibit B, all such policies shall be in such form and contain such provisions as are generally considered standard for the type of insurance involved. ( c) Certificate of Insurance. The parties acknowledge that Transferee has provided the City with a certificate of insurance listing the City and Master Developer as the Certificate Holders and evidencing compliance with the insurance requirements in this Agreement. The City and Master Developer reserve the right to require complete certified copies of all insurance policies procured by Transferee pursuant to this Agreement, including any and all endorsements affecting the coverage required hereunder. 9. Indemnification of City and Master Developer. Transferee agrees to indemnify and hold the City and Master Developer, and the employees, agents, officers and officials 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 performance of the Downtown Services, the Development Agreement, this Agreement, the CID Petition, and the ST AR Bond Project Plan; or (b) the negligence or willful misconduct of Transferee, its employees, agents or independent contractors and consultants in connection with performance of the Downtown Services. (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, to the extent that such litigation results from , arises out of, or is in any way connected with Transferee's actions and undertaking in performance of the Downtown Services, the Development Agreement, this Agreement, the CID Petition, or the ST AR Bond Project Plan. 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, 7 73733089.2 .. 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; provided, however, that purposes of the foregoing indemnity, Transferee shall not be deemed to own or have control of real property solely by virtue of Transferee's performance of Downtown Services on or in connection with such real property. 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. Payment and Collection of Taxes. Transferee hereby agrees as follows: (a) Payment 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 or suspend payment for the Downtown Services through CID 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 (ii) 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 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) Sales Tax Collection. If Transferee is engaged in the business of sellin g tangible personal property at retail or rendering or furnishing services taxable pursuant to th e provisions of the Kansas retailers' sales tax act and amendments thereto (K.S.A. 79-360 I et seq.) within any of the Districts, Transferee shall collect, and make returns of, all taxes levied under the Kansas retailers' sa les tax act and any CID Sales Tax imposed within the Di strict in which Transferee is engaged in such business, all in the manner and at the times prescribed by appli cable 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 bu sinesses within the Districts, if 8 73733089.2 any, fo r whi ch Transferee is obligated to submit sales tax return s to the Kansas Department of Revenue. To the extent it may legally do so, info rmation obtained pursuant to thi s Section shall be kept confi dential by the City in accordance with Applicable Law and Requirements, including but not lim ited to K.S.A. 79 -3657. 11 . Rights of Access and Inspection. (a) The Transferee shall maintain complete, accurate, and clearly identifiable records with respect to the Downtown Services, Eligible Transferee Costs and any other documents created pursuant to, or arising under, this Agreement, including, but not limited to, as applicable: all contracts, subcontracts, material purchase orders, 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. (b) 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, 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. 12. Assignment and Transfer of this Agreement. Notwithstanding Section 9.03 of the Development Agreement, or anything set forth herein which is seemingly to the contrary, and due to the unique qualifications and capabilities of Transferee, neither the rights nor responsibilities provided for under this Agreement shall be assignable by any Party, in whole or in part. 13 . Defaults and Remedies. Events of Default and remedies therefore shall be governed by Article VIII of the Development Agreement, which is expressly incorporated herein. 14. 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. Further, the Master Developer shall be released as a Party to this Agreement by amendment upon the request of the Master Developer at its sole election. 15. Notice. Notice to City and Master Developer shall be as described m the Development Agreement. Notice to Transferee shall be made to the following: 9 73733089.2 .. To the Transferee: Salina Downtown, Inc. Attn: Executive Director 120 W. Ash St. Salina, Kansas 67401 16. 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. 17. Required 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. 18. 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. 19. Tax Implications. The Transferee acknowledges and represents that (1) neither the City nor 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. 20. Kansas Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Kansas. 21 . 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. 22. 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. 10-11 OJ et seq. and K.S.A. 79-2935 et seq. 23. 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. 10 73733089.2 24. 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. 75-4301 a) in the Third Party Developer entering into such Transferee Agreement. In such event, the City and the Third Party 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.] 11 73733089.2 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 [SEAL] ATTEST: Shandi Wicks, CMC, City Clerk MASTER DEVELOPER: SALINA2020, INC., a Kansas corporation Name:_-4--L:.-..;=:.....L._,__..__.~.;;..::;...L..>.==----­ Title: _ __._..'""'""""""",,._L-L--==------- TRANSFEREE: SALINA DOWNTOWN, INC., a Kansas not for profit corporation By: __________ _ Name: ___________ _ Title: ___________ _ 73733089.2 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 Michael L. Hoppock, Mayor [SEAL] ATTEST: Shandi Wicks, CMC, City Clerk APPROVED AS TO FORM: Legal Counsel MASTER DEVELOPER: SALINA2020, INC., a Kansas corporation By: _____________ _ Name: -------------Title: ------------~ TRANSFEREE: SALINA DOWNTOWN, INC., a Kansas not for profit corporation By ~l QM I &:hib Name: em\ \ d &-Hts Title: £.~.('O >+iVSL t),..2. C:lor- 73733089.2 EXHIBIT A.1 TO TRANSFEREE AGREEMENT Allocation of Responsibilities I 73733089.2 Exhibit A.1 to SDI Transferee Agreement Allocation of Responsibilities Infrastructure Item Category Responsible Party Alley Dusk:Dawn Lights Benches Bike Racks Bus Stops Electrical Maintenance Irrigation Maintenance Lighting Maintenance Public Art Restroom Maintenance Sculpture Tour Trash Corrals Maintenance Trees Cigarette Containers Future Physical Improvements Infrastructure Infrastructure Infrastructure Infrastructure Infrastructure Infrastructure Infrastructure Infrastructure Infrastructure Infrastructure Infrastructure Infrastructure Infrastructure Infrastructure Processes City City City City City City City City City City City City SDI SDI Item Category Responsible Party Parking Enforcement Process City Sidewalk Dining Process City Downtown Ordinance Process City/ SDI Parades I Marathons Process SDI/ City Parking Permits Process SDI/ City # Services Item Category Responsible Party Alley Snow Removal Services City Graffiti -Public Art Services City Landscaping I Mowing Services City Parking Lot Snow Removal Services City Pedestrian Trash Cans & Disposal Services SDI Restroom Cleaning & Security Services City Sidewalk Snow Removal Services Property Owner I SDI Billy Goat I Drainage Services SDI Event Scheduling Services SDI Graffiti -Bldgs, etc. Services SDI Litter Pickup Services SDI Plaza Cleaning Services SDI Plaza Oversight I Setup Services SDI Programming Services SDI Security Services SDI Trash Corrals Oversight Services SDI Visual Inspections Services SDI Christmas Lights Services SDI/ City Pole Banners Services SDI/ City Annual Plantings Services SDI Perennial Plantings I Maintenance Services City EXHIBIT A.2 TO TRANSFEREE AGREEMENT Statements of Work[To be approved and attached for each Operating Year in accordance with Section 7(e) of Transferee Agreement] 73733089.2 • EXHIBITB INSURANCE REQUIREMENTS Pursuant to Section 8 of the Agreement, Transferee shall obtain, pay for, and maintain -and shall require each of its authorized subcontractors to obtain and maintain -for the duration of the Agreement, policies of insurance meeting the following requirements: I. General Requirements. A. Additional Insured. With the exception of the workers' compensation and professional liability policies to be obtained by Transferee hereunder, all policies shall name the City, its agents, representatives, officers, officials, and employees as additional insured(s). Insurance for the additional insured shall be as broad as the insurance for the named insured, including defense expense coverage, and, with respect to the commercial general liability policy required hereunder, shall be endorsed to apply as primary and non-contributory insurance before any other insurance or self-insurance, including any deductible, maintained by, or provided to, the additional insured(s). B. Waiver of Subrogation. Where allowed by law, all policies will include a waiver of subrogation in favor of the City, its agents, representatives, officers, officials, and employees. C. Claims Made Policies. If coverage is written on a claims-made basis for any of the policies required by this Agreement, Transferee must maintain the coverage for a minimum of two (2) years from the date of final completion of all work under the Agreement. D. Premium and Deductible Expenses. Transferee shall be responsible for all premmms and retention or deductible expense for any and all policies required by this Agreement. 2. Specific Coverage Requirements. A. Professional Liability -Errors and Omissions. Transferee shall maintain professional liability insurance covering errors and omissions, with limits of not less than $1 ,000,000. In the event coverage is provided on a claims-made basis, the professional liability insurance shall be maintained for a period of not less than two (2) years after completion of the Contract or, in lieu thereof, Transferee shall purchase tail coverage (extended reporting period) under which the City shall be afforded protection. B. Commercial General Liability ("CGL"). Transferee shall maintain CGL coverage written on ISO Occurrence form CGOO 01 or an industry equivalent, which shall cover liability arising from Personal Injury, Bodily Injury, Property Damage, Premises and Operations, Contractual Liability, Independent Contractors and Advertising Injury. The policy limits shall not be less than the following: • Each occurrence • General aggregate 73733089.2 $1 ,000,000 $2,000,000 • • Personal and Advertising Liability $1 ,000,000 C. Business Automobile Liability ("BAL"). Transferee shall maintain BAL coverage written on ISO form CA 00 0 I or an industry equivalent. Coverage shall be applicable to all autos and other vehicles subject to compulsory auto liability laws that are owned, hired, rented or used by Transferee and include automobiles not owned by but used on behalf of Transferee. The BAL policy limits shall not be less than the following: • Combined single limit $1 ,000,000 D. Workers' Compensation/Employer's Liability. Transferee shall maintain workers' compensation and employer's liability coverage with policy limits not less than the following: 73733089.2 • Workers' Compensation (Coverage Part A) o Statutory • Employer's Liability (Coverage Part B) o $100,000 each accident o $500,000 disease -policy limit o $100,000 disease -each employee