03-22-2021 Transferee Agreement Fourth & Walnut, LLCTRANSFEREE AGREEMENT
THIS TRANSFEREE AGREEMENT (this "Agreement"), is made and entered into this
22nd day of March, 2021 (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
"Q!y"), SALINA 2020, INC., a Kansas corporation (the "Master Developer"), and Fourth and
Walnut, LLC, a Kansas limited liability company ("Transferee") (collectively, the "Parties" and
each a "Efil:!y").
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. 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.
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 date that the Transferee has been reimbursed for all Eligible Transferee Costs by Public
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Finance Proceeds, or (ii) the date this Agreement is terminated pursuant to Section 6 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:
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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,
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.
111. 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 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 Transferee Project.
11 . All of the terms and conditions set forth in Article V (ST AR 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 Project. Transferee has commenced
construction of the Transferee Project.
(b) Construction of the Transferee Project. Transferee shall construct the
Transferee Project in a good and workmanlike manner in accordance with the terms of this
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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) Completion of the Transferee Project. The Transferee shall cause the
Transferee Project to be completed with due diligence. Transferee shall complete
construction of the Transferee Project by May 1, 2021. Completion of the Transferee
Project shall mean receipt of a Certificate of Completion as defined in Section 3.07 of the
Development Agreement.
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(d) Failure to Comply with Performance Milestones.
i. Failure to Timely Complete the Project. 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 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
ofits election to reduce the TIF 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
TIF 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 oftime as set forth in Section 8.09 of the Development
Agreement.
ii. Rights 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
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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.
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 Cap. Following Transferee 's satisfaction of the Public
Finance Access Condition, City and Master Developer will provide Transferee access to
TIF Proceeds up to $250 ,000 from the New Business TIF Fund (the "TIF Allotment
Principal") plus interest as described in Section 7(c) below. Such TIF Proceeds shall be
used by Transferee solely for financing those costs of the Transferee Project identified in
the columns labeled TIF 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 TIF Allotment Principal , interest at a rate of 5% per
annum will be reimbursed to Transferee from the New Business TIF Fund on all Eligible
Transferee Costs composing the amount of the TIF Principal which a) have been certified
for reimbursement by the City and b) have yet to be reimbursed.
(d) Pay-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 TIF 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
access such TIF Proceeds , Transferee shall submit Certifications of Expenditures to the
City in a manner consistent with Article VI of the Development Agreement.
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( 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 Business TIF Fund is $19 ,250 of TIF 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 TIF Proceeds the Transferee, the combined total TIF 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 Project 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 TIF 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 TIF Proceeds shall not
exceed fifty percent (50%) 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 City 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 attorney s ' 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;
(b) the negligence or willful misconduct of Transferee, its employees, agents or
independent contractors, consultants, affiliates , and any other party related to Transferee
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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. Payment of Taxes and Liens. 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 ofreal 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
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.
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(b) Liens. Transferee and its respective Affiliates further agree that no
mechanics ' or other liens 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. Damage, 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 an y 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 E scrow
for payment of said costs.
(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
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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 Inspection.
(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 ,
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;
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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:
Guy W. Gross
Fourth & Walnut, LLC
138 S. 4th Street
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.
19. 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.
20. 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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21. 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.
22. 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 an y incident giving rise to a claim , suit, judgment or demand
occurred during Term.
23. Kansas Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Kansas.
24. 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.
25. 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.
26 . 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 .
27. 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 .
28. 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 an y 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 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 .
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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.
[SEAL]
STATE OF KANSAS )
) SS.
COUNTY OF SALINA )
On this 1 nd day of May , 2023, 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 seal affixed to the foregoing instrument is the official Seal of the City of
Salina, and that said instrument 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.
~. NIKKI GODING
@@ Notary Public -State of Kansas
My Appt. Expires ~
~,&,Uk~
NotarY Public ~
My Commission Expires: f /?J/1.Co
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 .
MASTER DEVELOPER:
SALINA 2020, INC.,
a Kansas corporation
By:~~~~~
Trace E . Walker, Secretary & Treasurer
STATE OF KANSAS
COUNTY OF SALINE
)
) SS.
)
On this d};3:[A day of March, 2023 , before me personally appeared Trace E. Walker,
to me personally known, who being by me duly sworn did say that he is the Secretary and Treasurer
of Salina 2020 , 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.
NOT~
[SEAL]
7422 9 134 .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.
TRANSFEREE:
FOURTH AND WALNUT, LLC ,
a Kansas limited liability company
By: J-PNg_ GuyW~mber
STATE OF KANSAS
COUNTY OF SALINE
)
) SS .
)
On this ~~day of March, 2023 , before me personally appeared Guy W. Gross, to me
personally known, who being by me duly sworn did say that he is the Member of Fourth and
Walnut, LLC , a Kansas limited liability company, and that said instrument was signed and
delivered on behalf of said limited liability company and acknowledged to me that he executed the
same as the free act and deed of said limited liability company.
In Testimony Whereof, I have hereunto set my hand and affixed my official seal the day
and year first above written. ~ . Q
Lfl)~O{)~Q
Notary Public Q Hr
Printed Name: ~-\:;. c_'.lo.. :::r ~ U. <"D
MyCorm~~~J~lmtr~.~.P~IL~LAR:-::-:0~
"" -· Notary Publlc • State d Kansas
My Appl~ January 31, 202&
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EXIDBIT A TO TRANSFEREE AGREEMENT
Description of Transferee Project
The plan for this property is an indoor baseball & softball facility.
The property is currently & owned by 4th & Walnut LLC. The northwest white building on the
property will be demolished . All remaining buildings will be fully restored . This will include but
not be limited to; new interior flooring, walls, roofs, windows, doors & siding. The property will
also boast updated electrical, plumbing & HVAC, new concrete work adding additional parking
spaces & safer entrances.
The indoor baseball/softball academy will span approximately 20,000 square feet, house 14
indoor batting cages, 8 indoor pitching mounds & a major league size infield, covered by a roof
& enclosed by nets.
State of the art equipment to be housed at the facility includes but is not limited to;
• HitTrax-data capture & simulation system that provides a powerful combination of
performance data & entertainment value for player training, college recruitment, &
competitive hitting leagues
• Fully netted & turfed baseball/softball practice areas
• Online scheduling software for member convenience
• Digitally tracked security system for member safety
• 4 Hack Attack-baseball/softball pitching machines that is the major league quality
training tool used to develop serious young players
• 14-19' wide x 45-66' deep batting cages-oversized cages built to accommodate all ages
& skill levels
• Major League size infield; covered & enclosed-available for year round play providing
repetitions players need for consistent improvement & live game environment in the
off-season
• 8 Pitching mounds-built with team training & individual development in mind
The facility will be used for workouts by an estimated 250-300 members on a daily to weekly
basis. In addition, the facility will provide small group training, private lessons, opportunities for
teams to host fundraising events, competitive leagues by position, team & player camps,
coaching clinics, & more.
The marketing strategy includes drawing players into Salina from a 90-120 mile radius to The
Yard to compete . This location was chosen because of the close proximity to downtown Salina.
The opportunity for players & fans to be able to walk to hotels, restaurants & great local
activities; shopping, The Field House, The Alley, etc, will create an overall unique experience that
is unmatched in the state of Kansas .
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View of 211 E Walnut from 4th Street facing west. This rendering shows all new concrete along the east
side providing new parking stalls & the new entrance to the north building. The north orange building
houses the batting cages. The black steel structure will house the major league size covered & enclosed
baseball & softball infield .
Aerial view of 211 E. Walnut from the corner of 4th & Walnut. The rectangular black building houses the
indoor bullpen/pitching mounds, the large square black roof covers the infield & the first building north
is the batting cages.
2
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View of 211 E Walnut from Walnut Street facing north. The building to the right is the indoor
bullpen/pitching mounds . The infield is to the left and the building with the batting cages is just to the
north of the infield .
Interior view of the covered & enclosed infield
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Interior view of the orange most northern building (batting cage building) 138 S. 4th. Upon entering you
will be greeted at the reception desk. This will also be home to the Pro Shop.
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74229 134 .1
EXHIBIT B TO TRANSFEREE AGREEMENT
Legal Description and Map
Legal Description:
211 E. Walnut St, the City of Salina in Saline County, State of Kansas.
Legally described as; Original town of Salina, S13, T14, R3, Lot 130 132 134 136 & 138 Fourth
St
Map:
74229134 . l
EXIDBIT C-1 TO TRANSFEREE AGREEMENT
Critical Path Schedule
[TO BE PROVIDED SEPARATELY)
EXIDBIT C-2 TO TRANSFEREE AGREEMENT
Project Budget
Expense Category Tl F Proceeds Private Funds
Building Acquisition Cost $ 250,000 $ 125,000
Demolition Cost $ $ 200,000
Plumb i ng $ $ 40,000
Electrical, Lighting & Fans $ $ 70,000
Roof $ $ 306,000
Concrete $ $ 100,000
Windows & Doors $ $ 40,000
Turf $ $ 200,000
Nets $ $ 90,000
Equipment $ $ 100,000
Total $ 250 ,000 $ 1,271,000
74229134.1
Total Cost
$ 375,000
$ 200 ,000
$ 40,000
$ 70,000
$ 306,000
$ 100,000
$ 40,000
$ 200 ,000
$ 90,000
$ 100,000
$ 1,521,000